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Provencio v. Vazquez

August 15, 2008

DANIEL PROVENCIO, ET AL., PLAINTIFF,
v.
PATRICIA VAZQUEZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Anthony W. Chief United States District Judge

ORDER GRANTING IN PART MOTION TO DISMISS AND STRIKE (Documents #66 & #67)

BACKGROUND

On January 12, 2007, Daniel Provencio, Jr., Nancy Mendoza, and Johnny G. Provencio ("Plaintiffs") filed this federal civil rights action pursuant to 42 U.S.C. § 1983, seeking damages for the March 2005 death of their relative, Daniel Provencio ("Provencio"), who was incarcerated at Wasco State Prison ("Wasco").

Defendants, all of whom are or were affiliated with Wasco, moved for a stay and for abstention based on Plaintiffs' pending state court complaints, which were filed in the Kern County Superior Court in 2006 and arose from the same events as this action. On July 13, 2007, this court stayed this federal action.

On December 21, 2007, Plaintiffs filed a motion to lift the stay and a motion to amend the complaint, along with a lodged amended complaint. Magistrate Judge Goldner took the motions under submission.

On February 14, 2008, Plaintiffs dismissed the related state action.

On June 11, 2008, Magistrate Judge Goldner vacated the stay and granted Plaintiffs' motion to file an amended complaint.

On June 17, 2008, Plaintiffs filed the amended complaint.

On July 3, 2008, Defendants*fn1 filed a motion to dismiss the complaint. Defendants contend that the Second Claim, alleging Section 1983 liability of supervisors, is barred as a matter of law. Defendants contend that the Seventh, Eighth, Ninth, and Tenth Claims are barred by the applicable statute of limitations. Defendants contend that Defendant Songer should be dismissed because the complaint contains no allegations as to Defendant Songer. Defendants contend that the allegations in the ninth claim, alleging Defendant Warden Vasquez was negligent when she enacted polices concerning medical care, must be struck because Defendant Warden Vasquez is immune from liability. Finally, Defendants seek to strike the amended complaint's allegations requesting damages for the decedent's pain and suffering and loss of life.

On July 18, 2008, Plaintiffs filed an opposition. Plaintiffs contend that the statute of limitations should be equitably tolled. Plaintiffs contend that the supervisors can be held liable for failing to supervise under Section 1983. Plaintiffs contend that pain and suffering damages, along with hedonic damages, may be recovered in a Section 1983 claim. Plaintiff concedes that such damages are not available in Plaintiffs' state law claims. Finally, Plaintiff agrees Defendant Songer should be dismissed. On July 25, 2005, Defendants filed a reply. Defendants contend that Plaintiffs are not entitled to equitable tolling.

LEGAL STANDARDS

A. Rule 12(b)(6) -- Failure to State a Claim

A complaint may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure to state a claim upon which relief can be granted". Fed.R.Civ.Pro. 12(b)(6). A Rule 12(b)(6) dismissal can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976); Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003).

For a complaint to avoid dismissal pursuant to Rule 12(b)(6), the complaint need not contain detailed factual allegations; rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, -- U.S. -- , 127 S.Ct. 1955, 1974 (2007); Weber v. Department of Veterans Affairs, 512 F.3d 1178, 1181 (9th Cir. 2008). The complaint's factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 127 S.Ct. at 1964-65. Federal Rule of Civil Procedure 8(a)(2) requires a "showing" that the plaintiff is entitled to relief, "rather than a blanket assertion" of entitlement to relief. Id. at 1965 n. 3. Thus, a Rule 12(b)(6) motion to dismiss should be granted when a plaintiff fails to nudge his or her claims "across the line from conceivable to plausible." Id. at 1974.

B. Rule 12(f) -- Motion To Strike

Rule 12(f) of the Federal Rules of Civil Procedure allows the court to strike from "any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." The purpose of a Rule 12(f) motion is to avoid the costs that arise from litigating spurious issues by dispensing with those issues prior to trial. Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir.1983). Immaterial matter is defined as matter that "has no essential or important relationship to the claim for relief or the defenses being pleaded." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir 1993) (quoting 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382, at 706-07 (1990)), rev'd on other grounds, 510 U.S. 517 (1994). Impertinent matter is defined as "statements that do not pertain, and are not necessary, to the issues in question." Fantasy, Inc. 984 F.2d at 1527.

ALLEGED FACTS

The complaint alleges that at or about 4:00 p.m. on January 16, 2005, in Facility D, Building 4 of WSP, Defendant Matthew Palmer ("Palmer") aimed a Defense Technologies 40mm rifle directly at Daniel Provencio ("Provencio"), pulled the trigger, firing the rifle's 40mm plastic bullet, which struck Provencio in the head.

The complaint alleges that moments later, Defendant Matthew Adams ("Adams") sprayed Provencio with Oleoresin Capsicum Pepper Spray ("pepper spray"). The complaint alleges that Defendants Palmer, Lawless, Adams, Hicks, Short, Parades, Drugich, and Ramos, and Doe 1 knew or should have known that pepper spray caused severe pain and anguish and elevated blood pressure, and it should have been, but was not, alleviated by immediately flushing Provencio's face with water. The complaint alleges that none of the Defendants ever flushed the pepper spray from Provencio's face. The complaint alleges that Doe 1 placed a bag over Provencio's head, exacerbating the burning effect of the pepper spray. The complaint alleges that the unflushed pepper spray remained on Provencio's face for the hour that he spent, handcuffed and shackled, in the "emergency room" at WSP and for another 45 minutes while he was being transported by ambulance to Bakersfield, California.

The complaint alleges that Defendants failed to staff WSP's medical facilities with a full-time licensed medical doctor, and failed to provide adequate equipment or support personnel to attend to anticipated injuries or to stabilize patients prior to transport. The complaint alleges that Defendants contracted with Defendant Ramos to be on-call for medical emergencies at WSP despite defendants' knowledge that Defendant Ramos resided and maintained his medical offices in Bakersfield - at least a 45 minute automobile trip to Wasco, CA.

The complaint alleges that Defendants knew Provencio was very seriously injured and was at substantial risk of serious harm or death. The complaint alleges that despite such knowledge, Defendants failed, neglected, and refused to render proper medical care to Provencio. The complaint alleges that Defendants ultimately paged Defendant Ramos who arrived at the WSP "emergency room" approximately one hour later. The complaint alleges that upon Ramos's arrival, he examined Provencio and immediately recognized that Provencio was very seriously injured and was at substantial risk of death unless his subdural hematoma was treated forthwith.

The complaint alleges that Defendant Ramos (a) lacked the training and skill to treat or stabilize Provencio, and/or (b) lacked the equipment and/or support staff to treat or stabilize Provencio. The complaint alleges that Defendants phoned for a standard ambulance -- not a medivac helicopter - to transport Provencio to a general hospital in Bakersfield, California.

The complaint alleges that on March 4, 2005, Provencio died from brain injury and cardiac arrest. The complaint alleges that the Kern County Sheriff-Coroner determined "that the death of Daniel David Provencio was a homicide, death at the hands of another by other than accident." Coroner's Case No. C-0492-05.

The complaint alleged that Palmer knew that aiming the Defense Technologies 40mm rifle directly at Provencio and pulling the trigger subjected Provencio to a substantial risk of serious bodily injury or death.

The complaint alleges that Defendants Palmer, Lawless, Adams, Hicks, Short, Parades, Drugich, and Ramos and Doe 1 knew that failing to flush the pepper spray from Provencio's face and covering his head with a hood subjected Provencio to agonizing burning pain, elevated blood pressure, and to a substantial risk of serious bodily injury or death.

The complaint alleges that Defendants Vasquez, Cooper, Crouch, Gibson, Gladden, Riley, Gamez, Gibbons, Guerzon, Herrera, Hinter, Johnson, Martinez, Miranda, Phillips, Turpin, Welch, Williams, and Yoder were responsible for training Palmer in the use of the Defense Technologies 40mm rifle. The complaint alleges these Defendants failed to train Palmer, inter alia, about (a) the trajectory or flight-path of the projectile he fired, (b) about the excessively long trigger pull of the launcher, (c) about the reduced geometric target zone when fired at a downward angle, and (d) about the potential lethality involved in firing the weapon at inmates. The complaint alleges that Palmer was rarely given the opportunity to practice firing the 40mm launcher using live rounds. The complaint alleges that Defendants improperly trained Palmer that firing the weapon at inmates was "less than lethal."

The complaint alleges that on and before January 16, 2005, Defendants Vasquez, and Does 2 through 10, breached their duty to Provencio by failing and neglecting to properly train WSP employees (a) that the use of pepper spray upon an inmate with a severe head injury was prohibited because the ensuing increase in blood pressure was life threatening, (b) that the use of pepper spray caused a severe burning sensation, injury to the mucous membranes, coughing, spitting, and difficulty breathing which, unless alleviated by flushing with water, would continue for up to an hour and forty-five minutes.

The complaint alleges that on and before January 16, 2005, Defendants Vasquez and Does 12 through 30, failed, neglected, and refused to (a) train WSP personnel to use medivac helicopters to transport physicians to WSP and (b) train both WSP personnel and Defendant Ramos to use medivac helicopters to transport severely injured ...


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