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Victory v. Barber

February 26, 2009

MICHAEL ANTHONY VICTORY, PLAINTIFF,
v.
BARBER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT NEUBARTH'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM BE GRANTED IN PART AND DENIED IN PART (Doc. 43)

FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST BE DENIED (Docs. 44-1 & 49-1) / OBJECTION DUE WITHIN 10 DAYS

I. Findings and Recommendations

A. Procedural History

Michael Anthony Victory ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's amended complaint, filed October 16, 2006, against defendants C. Barber, R. D. Smith, N. Kushner, P. Bresler, F. Salazar, M. D. Sacks, Neubarth, and Ortiz ("Defendants") for deliberate indifference to Plaintiff's medical needs, in violation of Plaintiff's Eighth Amendment rights. On August 22, 2008, pursuant to Federal Rule of Civil Procedure 12(b)(6), defendant Neubarth filed a motion to dismiss for failure to state a claim upon which relief may be granted. (Doc. 43.) On August 22, 2008, pursuant to the unenumerated portion of Federal Rule of Civil Procedure 12(b), defendants Ortiz, Bresler, Smith, and Barber filed a motion to dismiss based on Plaintiff's failure to exhaust the available administrative remedies in compliance with 42 U.S.C. § 1997e(a). (Doc. 44-1.) On September 18, 2008, defendants Sacks, Salazar, and Kushner also filed a motion to dismiss for failure to exhaust available administrative remedies. (Doc. 49-1.) On October 23, 2008, Plaintiff filed an opposition against all of Defendants' motions to dismiss. (Doc. 52.)*fn1 The Court will address each motion separately as set forth below.

B. Motion to Dismiss for Failure to State a Claim

1. Legal Standard

"The focus of any Rule 12(b)(6) dismissal . . . is the complaint." Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). In considering a motion to dismiss for failure to state a claim, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The federal system is one of notice pleading. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (2002). "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which apply to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512.

A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. Discovery and summary judgment motions - not motions to dismiss - "define disputed facts" and "dispose of unmeritorious claims." Id. at 512. "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'" (quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001))). A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that plaintiff can prove no set of facts in support of the claim that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). The Court notes that the legal standard for granting a motion to dismiss for failure to state a claim is the same as the one used by the Court in screening Plaintiff's complaint.

2. Defendant Neubarth's Motion

In Neubarth's motion, Defendant argues that his motion to dismiss should be granted because 1) Neubarth is no longer employed by Pleasant Valley State Prison ("PVSP") so no injunctive relief can be granted; 2) Neubarth is entitled to qualified immunity; and 3) Plaintiff has alleged no facts that support an Eighth Amendment violation either during Neubarth's examination or because of Neubarth's presence on the Chrono Committee that denied Plaintiff's chrono. (Doc. 43, pp. 5-10.)

In his opposition, Plaintiff contends that 1) Neubarth may still be working at a California Department of Corrections and Rehabilitation ("CDCR") facility, and if Plaintiff should be transferred there, he will have need of an injunction; 2) Neubarth is not entitled to qualified immunity; and 3) Plaintiff's allegations are sufficient for an Eighth Amendment claim. (Doc. 52, pp. 34-40.) The Court will address each argument as set forth below.

a. Injunctive Relief

Defendant contends that because Neubarth is no longer an employee of PVSP, there is no case-or-controversy and thus Plaintiff's claim for injunctive relief is moot. (Doc. 43, pp. 5-6.) Defendant refers to Document 35, Waiver of Service Returned Executed by the U.S. Marshals. Neubarth's former employment address is listed as PVSP. (Doc. 35.) Plaintiff argues that an injunction may be necessary if Plaintiff is transferred to a facility in which Neubarth is potentially working. (Doc. 52, pp. 35-36.)

When an inmate seeks injunctive or declaratory relief concerning an institution at which he is incarcerated, his claims for such relief become moot when he is no longer subjected to those conditions. See Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991). Plaintiff has demonstrated no reasonable possibility that he will be incarcerated at a facility in which Neubarth works at any predictable time in the future. See Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). Such an argument is too speculative.

The Court thus finds that Plaintiff's request for injunctive relief against Neubarth should be dismissed as moot.

b. Qualified Immunity

Defendant Neubarth contends that he is entitled to qualified immunity. (Doc. 43, pp. 6-7.) Government officials enjoy qualified immunity from civil damages unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In ruling upon the issue of qualified immunity, one inquiry is whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the defendant's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson v. Callahan, 129 S.Ct. 808, 813 (2009) ("Saucier procedure should not be regarded as an inflexible requirement"). The other inquiry is whether the right was clearly established. Saucier, 533 U.S. at 201. The inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition . . . ." Id. "[T]he right the official is alleged to have violated must have been 'clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Saucier, 533 U.S. at 202 (citation omitted). In resolving these issues, the court must view the evidence in the light most favorable to plaintiff and resolve all material factual disputes in favor of plaintiff. Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).

Here, Plaintiff alleges that Neubarth's conduct violated Plaintiff's Eighth Amendment right which guarantees medical care without deliberate indifference to a serious medical need. Plaintiff contends that his injury occurred on September 2003, when Plaintiff slipped and fell on metal stairs, injuring himself. Plaintiff suffered a laceration, swelling and pain in his right knee and shoulder, and back injuries. On December 12, 2003, Plaintiff was scheduled for a follow-up appointment with Dr. Neubarth. Plaintiff contends that Neubarth was aware of Plaintiff's prior medical history, which included a chronic degenerative disc disease in his lower back and Osgood Schlatter disease. Plaintiff contends that at a previous appointment, Dr. Kushner had told Plaintiff if his injury persisted, he should request an MRI or X-ray for his back, knee, and right shoulder from the doctor at his next visit. Plaintiff made his request, but Dr. Neubarth refused. Plaintiff contends that he also requested a one-year renewal for a low tier, low bunk and an eggcrate mattress chrono because of Plaintiff's medical history. Neubarth only ordered a ninety day low bunk, not necessarily low tier, chrono. Plaintiff's request for adequate pain medication was also denied. Neubarth would only continue Dr. Kushner's previous prescription of medication. Plaintiff alleges pain and suffering as a result of Neubarth's inaction. (Doc. 52, pp. 45-47.) Plaintiff contends that he received a partial grant of his appeal at the first level, in which the Chrono Committee would review his chrono requests. The Chrono Committee denied Plaintiff's request. Plaintiff alleges that Neubarth's presence on the Chrono Committee created a conflict of interest. (Doc. 52, Exh. E.)

Based on these allegations, Plaintiff has asserted a cognizable claim for an Eighth Amendment violation against defendant Neubarth. Plaintiff has alleged that Neubarth knew of an excessive risk to Plaintiff's health and disregarded it: Neubarth knew of Plaintiff's previous medical history and through his action exacerbated Plaintiff's pain. Plaintiff has satisfied the initial inquiry of whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the defendant's conduct violated a constitutional right. Saucier, 533 U.S. at 201.

The next inquiry is whether the right is sufficiently clear such that "a reasonable official would understand that what he is doing violates that right." Id. at 202 (citation omitted). Defendant Neubarth contends that a reasonable doctor would not have known that a difference of opinion is a constitutional violation. (Doc. 43, p. 9.) The Eighth Amendment's prohibition against cruel and unusual punishment clearly applies in the context of deliberate indifference to a serious medical need. The Court finds that the alleged facts, taken in the light most favorable to Plaintiff, indicate that a reasonable official would understand he is violating Plaintiff's constitutional rights through these actions. These are not mere differences in opinion that the Plaintiff alleges, but rather a knowing disregard of an excessive risk to Plaintiff's health. Under the notice pleading standard, ...


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