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Provencio v. Vazquez

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 29, 2009

DANIEL PROVENCIO, JR., PERSONALLY AND AS A SUCCESSOR IN INTERST TO DANIEL PROVENCIO, DECEASED, BY HIS GUARDIAN AD LITEM, MARIA LUCERO, ET AL, PLAINTIFFS,
v.
PATRICIA L. VAZQUEZ, ET AL DEFENDANTS.

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

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT, MICHAEL SONGER'S, MOTION TO DISMISS PORTIONS OF THIRD AMENDED COMPLAINT.

Document # 129

BACKGROUND

This case arises from an incident at Wasco State Prison -- Reception Center ("WSP") taking place on January 16, 2005. Daniel Provencio ("Provencio"), an inmate, was shot in the head with a rubber projectile from a 40mm launcher operated by correctional officer Mattew Palmer. Provencio was later pepper-sprayed and taken to the "emergency room" at WSP. The conduct of the medical staff, acting in alleged accordance with policies put in place by Defendant, provides the factual grounds for Plaintiffs' claims. Plaintiffs' filed suit in this court on January 12, 2007. Plaintiffs' third amended complaint was filed on January 2, 2009. In the third amended complaint, Plaintiffs' allege violations of Provencio's Eighth Amendment rights and file suit pursuant to the provisions of 42 U.S.C. § 1983.

For the current motion before the court, Defendant is Dr. Michael Songer ("Defendant"), who was the Health Care Manager for WSP, sued fictitiously as "Doe" 20, 30, and 31 in the third amended complaint. Defendant moved to dismiss portions of the third amended complaint on April, 27, 2009 and this motion was taken under submission on June 4, 2009.

LEGAL STANDARD

In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court examines whether a complaint "contain[s] sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court must 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). A Rule 12(b)(6) dismissal can be based on either 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 Iqbal the Supreme Court affirmed the broad application of the "plausible" standard, announced in Twombly, for examining the sufficiency of pleadings under Federal Rule of Civil Procedure 8. Iqbal 129 S.Ct. at 1953 (stating that the Court's decision in Twombly was based on "[the Court's] interpretation and application of Rule 8" and continuing that "[The Court's] decision in Twombly expounded the pleading standing standard for 'all civil actions'"). In applying the Twombly standard in Iqbal the Court outlined a two step process for analyzing a complaint. Id. at 1950-51. First, a reviewing court identifies all legal conclusions "that are not entitled to the assumption of truth." Iqbal 129 S.Ct. at 1949-51 (quoting Twombly, 550 U.S. at 555, parenthetically for the proposition that the Court "[is] not bound to accept as true a legal conclusion couched as a factual allegation"). Second, a court, "draw[ing] on its judicial experience and common sense", must determine in the specific context of the case whether the facts, if taken as true, establish a plausible claim for relief. Id. at 1950.

FACTS

This case involves numerous defendants and numerous facts relevant to various defense claims. The general facts as stated in the complaint are that on January 16, 2005, Provencio, an inmate at WSP, was shot in the head with a rubber projectile from a 40mm launcher operated by correctional officer Matthew Palmer. Provencio was later pepper-sprayed and taken to the "emergency room" at WSP. Provencio was attended to by a registered nurse, David Hicks, who paged the on-call doctor, Bernard Ferrer Ramos. Dr. Ramos drove from Bakersfield to WSP, approximately 35 miles away, and upon inspecting Provencio called for an ambulance to transport Provencio to a hospital. Provencio went into cardio-pulmonary arrest while being transported. Provencio later suffered death as a result of his wounds.

The facts specifically relevant to this motion are as follows. Plaintiffs filed suit in this court on January 12, 2007. The Plaintiffs' case was stayed from July 17, 2007, to June 11, 2008, while Plaintiffs sought remedies in another action in state court. Plaintiffs' third amended complaint was filed on January 2, 2009. In the third amended complaint, Plaintiffs allege violations of Provencio's Eighth Amendment rights and file suit pursuant to the provisions of 42 U.S.C. § 1983. On March 17, 2009, Plaintiffs filed amendments to their third amended complaint identifying Dr. Michael Songer as "Doe" 20, 30 and 31.

The complaint alleges that Doe 20 and 30 failed and refused to train WSP personnel to use medivac helicopters to transport physicians to WSP or to transport injured inmates from WSP. Plaintiffs' allege Doe 31 "well-knew" inmates regularly suffered injuries requring the attention of a licenced medical doctor and had an obligation to staff the medical facilities at WSP with a full-time doctor and provide "adequate equipment and support personnel properly to attend to anticipated injuries, and to stabilize patients prior to transport to the nearest general hospital 35 miles away in Bakersfield, California." Third Amended Complaint at ¶¶ 55-57. Among other allegations, the complaint alleges Defendant failed to properly staff WSP because Defendant had contracted with Defendant Ramos to be on-call for medical emergencies instead of staffing a full-time doctor to always be on duty at WSP.

DISCUSSION

I. Applicability of California Code of Civil Procedure section 583.420 to California's Fictitious Defendant Pleading Procedure in Federal Court

As a threshold issue Defendant contends that Plaintiffs' claims are time-barred under the State of California's "Doe" pleading procedures. Specifically Defendant contends that Plaintiffs' action must be dismissed pursuant to California Code of Civil Procedure section 583.420 which grants California State courts the discretion to dismiss a suit for failure to serve a defendant within two years. Defendant, however, mistakes the nature of California Code of Civil Procedure section 583.420 and its applicability in a United States District Court.

Plaintiffs' claims are made pursuant to 42 U.S.C. § 1983 which creates a civil action for the deprivation of federally protected rights. Because 42 U.S.C. § 1983, contains no specific statute of limitations, federal courts borrow state statues of limitations for personal injury actions in Section 1983 suits. Wilson v. Garcia, 471 U.S. 261, 276 (1985); Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004). "Federal law determines when a civil rights claim accrues." Maldonado, 370 F.3d at 954; Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir.2001). Accrual occurs when the plaintiff has "a complete and present cause of action." Wallace v. Kato, 549 U.S. 384, 388 (2007). The Ninth Circuit has explained that "[u]nder federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." Maldonado, 370 F.3d at 955; Knox, 260 F.3d at 1013.

Defendant is correct that in a 42 U.S.C. 1983 action, when the court borrows the statute of limitations from California State law, California's procedure for relation back in the suing of fictitious defendants controls. Merritt v. County of Los Angeles, 875 F.2d 765, 768 (9th Cir. 1989); Cabrales v. County of Los Angeles, 864 F.2d 1454, 1463 (9th Cir. 1988). The court's conclusion in Cabrales expressly relied on Lindley v. General Elec. Co., 780 F.2d 797 (9th Cir. 1986). Cabrales at 1463. In Lindley, the Ninth Circuit adopted a district court's determination that taken together California Civil Procedure Code sections 340, 474, and 581a can functionally create a four year statute of limitations if the plaintiff filed suit within one year of accrual of the cause of action and the identity of defendants are unknown to plaintiff.*fn1 Lindley at 800 (paraphrasing and adopting Rumberg v. Weber Aircraft Corp., 424 F.Supp. 294 (C.D.Cal.1976)); Cal. Civ. Proc. Code §§ 340, 474, 581a, 583.210.*fn2 Some commentators suggest the line of cases following Cabrales and Merritt can be explained as a determination that California's relation-back rule is inextricably intertwined with its statute of limitations. 6A Wright, Miller & Kane, Fed. Prac. & Proc. Civ.2d § 1503 (2009). This contention is supported by the legislative comments to section 583.210 when it was enacted in 1984 following the repeal of section 581a. See Legislative Committee Comments--Assembly Cal. Civ. Proc. Code § 583.210 (West 2009) ("section 583.210 applies to a defendant sued by a fictitious name from the time the complaint is filed."). Although Merrit and Cabrales do not specifically reference section 583.210, it is clear from the context, underlying opinions and subsequent cases that section 583.210 is the statute that in combination with section 474 has been found to allow plaintiffs suing fictitious defendants in federal court under 42 U.S.C. 1983 three years to serve a "Doe" defendant upon ascertaining their identity. See Rodgers v. Horsely, 123 Fed. Appx. 281, 285 (9th Cir. 2005) (citing the California Supreme Court in Norgart v. Upjohn Co., 21 Cal.4th 383, 389 (1999), and stating that a 42 USC § 1983 plaintiff "has three years to identify the unknown defendant, amend the complaint, and effect service of the complaint"); Motley v. Parks, 198 F.R.D. 532, 534-35 (C.D. Cal. 2000) (finding, in a case arising under 42 U.S.C § 1983, that Federal Rule of Civil Procedure 15(c)(1) applied to California Civil Procedure Code section 583.210 and allowed plaintiffs three years to serve "Doe" defendants).

However, in the current case Defendant is asking this court to take a step beyond Merrit and Cabrales. Defendant contends that this court should apply California Civil Procedure sections 583.410 and 583.420, which grant California State courts the discretion to dismiss claims where plaintiffs have failed to serve a defendant within two years. California Civil Procedure section 583.410(a) states "the court may in its discretion dismiss an action for delay in prosecution pursuant to this article. . . if to do so appears to the court appropriate under the circumstances of the case." Section 583.420 provides, in relevant part, "[t]he court may not dismiss an action pursuant to this article for delay in prosecution except" if "[s]ervice is not made within two years after the action is commenced against the defendant." Cal. Civ. Proc. Code § 583.420(a)(1). Defendant provides California case law suggesting that dismissal is "required" after two years where "no excusable delay" has been shown.*fn3

This court holds that section 583.420 is not controlling for the following reasons. First, section 583.420, unlike section 583.210, does not contain any Legislative Comment indicating it is specifically a part of California's "Doe" pleading procedures. See Legislative Committee Comments--Assembly Cal. Civ. Proc. Code § 583.420 (West 2009). In fact, article four of section 583 is entitled "Discretionary Dismissal for Delay" and the Legislative Comments indicate that section 583.420 "continues the substance of section 583(a)", not former section 581a. Id. Second, the Federal Rules of Civil Procedure already furnish this court with the procedure and grounds for discretionary dismissal in the form of Rule 41(b) of the Federal Rules of Civil Procedure. Rule 41(b) provides that "If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Third, "when it is necessary for [the federal courts] to borrow a statute of limitations for a federal cause of action, [the federal courts] borrow no more than necessary." West v. Conrail, 481 U.S. 35, 39 (1987). Without devolving into a full Erie-Hanna analysis, this court concludes that section 583.420, concerning discretionary dismissal for delay, is not inextricably intertwined nor a substantive element of California's "Doe" pleading procedure. See Hanna v. Plumer, 380 U.S. 460, 471, 85 S.Ct. 1136, 1144 (1965) ("When a situation is covered by one of the Federal Rules, the question facing the court is a far cry from the typical, relatively unguided Erie choice: the court has been instructed to apply the Federal Rule, and can refuse to do so only if the Advisory Committee, this Court, and Congress erred in their prima facie judgment that the Rule in question transgresses neither the terms of the Enabling Act nor constitutional restrictions").

Plaintiffs filed this case on January 12, 2007, and effected service on Defendant on March 17, 2009. Under Cabrales and Merritt, Plaintiffs suing fictitious defendants under California law have three years to identify and serve defendants. Plaintiffs' service of Defendant was within three years of filing this action and is therefore timely.

II. Plaintiffs' Substantive Causes of Actions Against Defendant

Turning to the substance of Plaintiffs claims, Plaintiffs allege six causes of action against Dr. Songer, sued fictitiously as "Doe" 20, 30, 31. Defendant moves the court to dismiss the second, third, fifth and sixth cause of action. Defendant does not challenge the sufficiency of Plaintiffs' claims but rather asserts the actions must be dismissed because Defendant is entitled to qualified immunity.

Government officials are entitled to qualified immunity from civil liability under 42 U.S.C. § 1983 "'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Jensen v. City of Oxnard,145 F.3d 1078, 1085 (9th Cir. 1998) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Supreme Court has stressed that qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam); Malley v. Briggs, 475 U.S. 335, 343 (1986)); Rodis v. City, County of San Francisco, 558 F.3d 964, 971 (9th Cir. 2009). The test for qualified immunity is two-fold, "First, a court must decide whether the facts that a plaintiff has alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56) make out a violation of a constitutional right. Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was "clearly established" at the time of defendant's alleged misconduct. Pearson v. Callahan, 129 S.Ct. 808, 815-16 (2009)(citing Saucier v. Katz, 533 U.S. 194, 201(2001)). The Supreme Court in Pearson, however, reversed the mandatory order of the qualified immunity inquiry allowing courts the discretion to analyze the two prongs in either order. Pearson at 818. The defendant bears the burden of establishing qualified immunity. Crawford-El v. Britton, 523 U.S. 574, 586- 87 (1998).

Central to the first prong of the qualified immunity test as laid out in Saucier and Pearson is the sufficiency of Plaintiffs' causes of action under 42 U.S.C. § 1983 and specifically whether a Constitutional violation has been properly alleged. "To establish that a state official is personally liable in an action under 42 U.S.C. § 1983, a plaintiff must show that 'the official, acting under color of state law, caused the deprivation of a federal right.'" Spoklie v. Montana, 411 F.3d 1051, 1060 (9th Cir. 2005) (citations omitted). Plaintiffs do not allege that Defendant was directly involved in the conduct that allegedly deprived Provencio of his federally protected rights, but rather allege Defendant enacted policies that led to the events depriving Provencio of his rights. "Generally, supervisory officials are not liable for the actions of subordinates on any theory of vicarious liability under 42 U.S.C. § 1983." Jeffers v. Gomez, 267 F.3d 895, 914 (9th Cir. 2001) (citing Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989)). "A supervisor may be liable under § 1983 only if there exists either '(1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.' " Id. (quoting Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991)) (internal citations omitted); Hansen 885 F.2d at 646. In Hansen, the Ninth Circuit further concluded that "[s]upervisory liability exists even without overt personal participation in the offensive act if supervisory officials implement a policy so deficient that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional violation.'" Jeffers at 914. (citing Redman, 942 F.2d at 1446) (internal citations omitted). "The requisite causal connection may be established when an official sets in motion a 'series of acts by others which the actor knows or reasonably should know would cause others to inflict' constitutional harms." Preschooler II v. Clark County School Bd. of Trustees, 479 F.3d 1175, 1183 (9th Cir. 2007)(citing Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978)).

The causes of action Defendant contests arise under the Eighth Amendment's bar on cruel and unusual punishment as interpreted by the Supreme Court in Estelle v. Gamble, which held that:

Deliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain," proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under § 1983.

This conclusion does not mean, however, that every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment. . . .[I]n the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute "an unnecessary and wanton infliction of pain" or to be "repugnant to the conscience of mankind."Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.

Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (citations omitted) (emphasis added). In sum, pursuant to the multitude of cases following Estelle, for Plaintiffs to properly assert a claim against Defendant, Plaintiffs must allege that: (1) Provencio had a serious medical need, (2) which individuals were deliberately indifferent to (3) because of the policies Defendant established, (4) while acting under the color of state law, (5) were so deficient as to be the "moving force" behind the violation of Provencio's Eighth Amendment rights.

The second prong of the qualified immunity analysis inquires "whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct." Pearson 129 S.Ct. 815-816. Although Plaintiffs do not cite the court to any authority that addresses similar factual circumstances that would "clearly establish" Provencio's alleged Constitutional right, the court notes that lack of precedent does not necessarily entitle Defendant to qualified immunity. "The injured party need not establish that the Defendant's behavior had been previously declared unconstitutional." Rodis, 545 F.3d at 969. The inquiry is whether it would be clear to a reasonable officer that his or her conduct was unlawful in the situation he or she confronted. Saucier, 533 U.S. at 202; Rodis, 545 F.3d at 969. For a right to be clearly established "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). With these standards in mind the court turns to the specific causes of action against Defendant.

A. Second Cause of Action

Plaintiffs' second cause of action alleges that Defendant failed and refused to train Wasco State Prison personnel to use medivac helicopters to transport physicians to Wasco State Prison and to use medivac helicopters to transport severely injured inmates to the nearest general hospital. Plaintiffs further allege that this failure and refusal to train set in motion a series of acts or events that Defendant knew or reasonably should have known would cause others to inflict constitutional injury. Plaintiffs assert that as a direct result Provencio suffered injuries and death due to Defendant's reckless and callous indifference to Provencio's Eighth Amendment rights.

In this motion, Defendant has not contested the sufficiency of Plaintiffs' allegations. Instead Defendant asserts that dismissal is appropriate because Defendant is entitled to qualified immunity. The court will first analyze "whether the facts that a plaintiff has alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56) make out a violation of a constitutional right." Pearson, 129 S.Ct. at 815-16. Plaintiffs do not appear to have alleged the elements of a 42 U.S.C. § 1983 claim under the Eighth Amendment necessary to make a cause of action against Defendant. The complaint clearly alleges that Provencio did receive medical attention and emergency medical transport in response to Provencio's serious medical need. Plaintiffs therefore fail to establish the third prong of the standard set forth by this court for stating a cause of action against Defendant under 42 U.S.C. § 1983 in violation of Eighth Amendment; Plaintiffs fail to connect how Defendant's alleged policy caused individuals to act in deliberate indifference to Provencio's serious medical needs. The complaint does not allege that Defendant's alleged failure to train WSP personnel to utilize medivac helicopter services caused Provencio to be struck by a 40mm rubber projectile, nor does it allege that Defendant's alleged policy prevented Provencio from receiving medical attention or emergency medical transport. Plaintiffs fail to connect how Provencio's serious medical needs were affected by Defendant's alleged failure to train WSP personnel to utilize medivac helicopter services. It has long been established that differences in medical opinion, such as whether standard emergency medical services ambulances or medivac helicopter services are appropriate, do not constitute violations of the Eighth Amendment. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) ("We held in Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989) (citing Estelle, 429 U.S. at 107, 97 S.Ct. at 292), for example, that a plaintiff's showing of nothing more than 'a difference of medical opinion'. . . was insufficient, as a matter of law, to establish deliberate indifference").

As the court understands it, the cause of action Plaintiffs are attempting to assert is fundamentally a claim that because of Defendant's policies, the staff at Wasco State Prison were not trained for utilizing medivac helicopters and the resulting delay in treatment of Provencio's serious medical injuries constituted deliberate indifference in violation of the Eighth Amendment. However, there is no mention of the delay in relation to Provencio's injuries in Plaintiffs' second cause of action. At best it could be it could possibly be said to be implied in Plaintiffs' factual allegation of the distance to the nearest general hospital. However, even that is insufficient as "mere delay of [medical treatment], without more, is insufficient to state a claim of deliberate medical indifference." Shapley v. Nevada Bd. of State Prison Com'rs, 766 F.2d 404, 407 (9th Cir. 1985); Draper v. Harris,245 Fed. Appx. 699, 701 (9th Cir. 2007); Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990). Plaintiffs would need to allege what additional substantial harm resulted from a delay in treatment. Wood at 1335; Shapley at 407. For the foregoing reasons this court concludes that Plaintiffs' second cause of action fails to plausibly state a claim upon which relief can be granted under the standards enunciated by the Supreme Court in Iqbal.

However, as the Ninth Circuit prior to Twombly and Iqbal has liberally construed pleadings in section 1983 claims involving issues akin to supervisory liability, even if Plaintiffs had successfully alleged a Constitutional violation against Defendant, Defendant is still entitled to qualified immunity because the violation was not "clearly established." cf. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1127 (9th Cir. 2002) ("In this circuit, a claim of municipal liability under section 1983 is sufficient to withstand a motion to dismiss 'even if the claim is based on nothing more than a bare allegation that the individual officers' conduct conformed to official policy, custom, or practice.' " Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 624 (9th Cir.1988) (quoting Shah v. County of Los Angeles, 797 F.2d 743, 747 (9th Cir.1986)))

This court has not found any cases that specifically resolves whether a prisoner's right to be free from cruel and unusual punishment is abridged when medivac services are not utilized in treatment. Likewise, Plaintiffs have not cited the court to any cases supporting their specific position. Although precedent is not necessary, even taken in the larger legal context a reasonably diligent administrator would not have known his conduct violated a clearly established right. In support of his motion, Defendant cites the court to the Supreme Court's decision in Youngberg v. Romeo, 547 U.S. 307, 317 (1982), which noted, in the context of an institutionalized mentally retarded plaintiff's Fourteenth Amendment rights to "habilitation training", that although a duty to provide services and care does exist for institutionalized persons, "even then a State necessarily has considerable discretion in determining the nature and scope of its responsibilities." Defendant, highlighting Plaintiffs' lack of cited precedent, further contends that a court's qualified immunity inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition[.]" Saucier 533 U.S. at 201. From the weight of circuit authority, it is clear that the State's responsibility to address the serious medical needs of prisoners extends only to providing the minimally adequate medical care. Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir. 1997); Harris v. Thingpen, 941 F.2d 1495, 1504 (11th Cir. 1991); see U.S. v. Derbes, 369 F.3d 579, 583 (1st Cir. 2004) (while it is constitutionally obligated to provide medical services to inmates, these services need only be on 'a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards.') (citations omitted); Wood 900 F.2d at 1334 ("Although [Plaintiff's] treatment was not as prompt or efficient as a free citizen might hope to receive, [Plaintiff] was given medical care at the prison that addressed his needs") (citations omitted). The court again finds no case on point addressing whether, as a matter of law, the minimum standard of care requires the use of medivac services in lieu of emergency medical ambulances. The court concludes that, although the law requires access to minimally adequate medical care, given that there is no precedent specifically on point the contour of the law does not "clearly establish" a prisoners right to medivac services. Because the law was not "clearly established" Defendant could not reasonably be expected to know that he was violating Provencio's alleged Eighth Amendment guarantee to receive medivac services. Thus Defendant is entitled to qualified immunity on Plaintiffs second cause of action.

B. Plaintiff's Third Cause of Action

Plaintiffs allege that Defendant "well-knew that inmates regularly suffered medical injuries and conditions which required the immediate attention of a licensed medical doctor" and that Defendant "failed to staff the medical facilities at Wasco State Prison with any full-time licensed medical doctor." The complaint alleges that, instead, Defendant contracted with Dr. Ramos, a physician who resided and had his offices in Bakersfield, California, approximately 45 minutes away, to be on-call for emergencies at Wasco State Prison. Plaintiffs assert that these policies and conditions were a "direct and legal" cause of Provencio's injuries and death and constituted a deliberate indifference to Provencio's serious medical needs, violating Provencio's Eighth Amendment rights. The third cause of action incorporates the previous allegations that Defendant acted under the color of state law. Defendant contends that Plaintiffs' third cause of action must fail because Defendant is entitled to qualified immunity.

Turning to the two factors for qualified immunity identified in Saucier the court on this issue will first inquire into whether the right was "clearly established." For the following reasons the court finds the Defendant has not met his burden to show the contours of the law were not "clearly established" such that a reasonable official would not have known he was violating federally protected right. The Defendant, in support of dismissing the third cause of action, presents the same arguments he put forth for dismissing the second cause of action. In brief, Defendant asserts that the inquiry into qualified immunity cannot be based on a general principle, Saucier 533 U.S. at 201, and moreover while the State must provide medical care, the State has discretion in determining the nature and scope of its responsibilities, Youngberg 457 U.S. at 317 (the court again notes Youngberg was in inquiry into right the right to "habilitation training" under the Fourteenth Amendment).

It has long been the established law of this circuit that the Eighth Amendment grants prisoners a right to have "reasonably speedy access" to emergency medical services:

Access to the medical staff has no meaning if the medical staff is not competent to deal with the prisoners' problems . . . . [the medical staff] must be able to treat medical problems or to refer prisoners to others who can. Such referrals may be to other physicians within the prison, or to physicians or facilities outside the prison if there is reasonably speedy access to these other physicians or facilities. In keeping with these requirements, the prison must provide an adequate system for responding to emergencies. If outside facilities are too remote or too inaccessible to handle emergencies promptly and adequately, then the prison must provide adequate facilities and staff to handle emergencies within the prison.

Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir.1982); see also Madrid v. Gomez, 889 F. Supp. 1146, 1256-58 (N.D. Cal. 1995) (citing Hoptowit). Other circuits have arrived at similar standards requiring minimally adequate medical care. Ramos v. Lamm,639 F.2d 559, 574 (10th Cir. 1980) ("We are convinced that this duty necessarily requires that the State make available to inmates a level of medical care which is reasonably designed to meet the routine and emergency health care needs of inmates.") (internal quotations and citations omitted); see also Maggert, 131 F.3d at 671; Harris, 941 F.2d at 1504; Derbes, 369 F.3d at 583. In Hoptowit the Ninth Circuit Court of Appeals affirmed the district courts finding that the medical care at Washington State Penitentiary violated the Eighth Amendment, but reversed the district courts remedy as overbroad. Hoptowit at 1253. The district court had found that the prison was staffed by only "mid-level" practitioners, such as nurses and physician assistants, and concluded at minimum two full-time physicians were needed. Id. at 1252-53. The Ninth Circuit held the district court failed to grant proper deference to the State's approach to providing medical care. Id. at 1253-54. The State contended it sought to provide only an infirmary, rather than a hospital and referred inmates out to community medical treatment centers. Id. In accordance with the deference due to the State, the Ninth Circuit remanded for findings of fact concerning adequate access to community medical treatment. Id.

Under similar circumstances, the district court in Balla v. Idaho State Bd. of Corrections, 595 F.Supp. 1558, 1583 (D.C. Idaho 1984), ordered the State to make available 24 hour emergency medical services and contract or hire the equivalent of at least one full-time physician. In Balla, the district court had found that the State had evinced deliberate indifference to the serious medical needs of inmates at the Idaho State Correctional Institution by not providing, among other things, a full-time doctor or emergency medical care approximately one-third of the time. Id. at 1575-76.

Hoptowit and Balla clearly illustrate that in this circuit inadequate access to emergency medical care does violate the Eighth Amendment. The question remains, however, whether the Constitutional violation occurred. The court in Hoptowit discussed how a prison could provide a system of adequate medical care through referrals to the community. The system and policies in place at Wasco State Prison therefore could be Constitutional adequate. Whether the specific policies and conditions, enacted by Defendant, at Wasco State Prison are inadequate are questions of fact which are not currently before the court. Therefore, the court denies Defendant's motion to dismiss Plaintiffs' third cause of action, but grants Defendant leave to raise the defense of qualified immunity at a later point in the litigation.

C. Plaintiffs' "New Theories" of Liability under Third Cause of Action

Plaintiffs, in their opposition to Defendant's motion to dismiss, set forth two new theories of liability, which Plaintiffs explicitly admit are based upon information they acquired after filing their third amended complaint. Plaintiffs, however, contend that the theories are present in the third amended complaint. Plaintiffs first new theory of liability alleges that Defendant had an obligation to train WSP medical staff to recognize "the nature and types of injuries that may result" from the use of "less than lethal weapons" such as the "'risk of potentially life threatening sequella' following the impact of a high velocity projectile to the head." Opposition to Mot. to Dismiss at 7. As the court understands it, Plaintiffs second new theory of liability alleges that Defendant enacted a policy of requiring a "medical doctor's consent" before transporting an inmate outside WSP in violation of California Code of Regulations Title 15, section 3350.2 and Provencio's Eighth Amendment rights.*fn4

Defendant contends Plaintiffs' new theories of liability are not contained in the third amended complaint and that Plaintiffs are improperly trying to use California's doe pleading procedure to bring an entirely new theory of liability under the third cause of action. Defendant, while reaffirming his contention that Plaintiffs' claims against Defendant are time-barred, argues that bringing a new theory of liability not explicitly stated in a complaint is procedurally improper. Defendant argues that failure to provide "adequate personnel" is not the same as failing to train personnel. Moreover, Defendant argues that when Plaintiffs allege failures to train, they have done so explicitly. The court will first evaluate whether each of these new theories is contained in the third amended complaint.

Plaintiffs' first "new theory" of liability has been set forth above. The essence of Plaintiffs' argument is that their new theory is present in the third amended complaint because untrained personnel are not "adequate" personnel. Specifically, whether or not this new theory is present in the complaint turns on what is encompassed by the phrase "failed to provide adequate support personal." Plaintiffs' contend that their new theory--that Defendant failed to train medical personal to identify and treat injuries resulting from the use of less than lethal weapons-- is implicitly incorporated in "adequate personnel" because if the medical staff were not trained, the medical staff provided was not adequate. As the Defendant has noted, when Plaintiffs believed Defendant had failed to train personnel, Plaintiffs did so explicitly. In addition, the specific context of the allegations in the third amended complaint that Plaintiffs are attempting to advance this new theory under relate to staffing the appropriate number and time coverage of medical staff, not the training of said medical staff. Providing adequate personnel is not the same type of allegation as failing to train said personnel.

Given the attenuated connection between Plaintiffs' new theory and the allegations in the complaint, Plaintiffs' rather equivocal interpretation of the phrase "adequate personnel," and the fact that Plaintiffs explicitly allege failures to train elsewhere in their complaint, the court finds that Plaintiffs' first "new theory" is not sufficiently contained in the third amended complaint to meet the minimal standards of Federal Rule of Civil Procedure 8(a). Although Federal Rule of Civil Procedure 8 does not require a claimant to set out in detail the facts upon which he bases his claim, rule 8 does require a short and plain statement that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001) (citing Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993) and Conley v. Gibson, 355 U.S. 41, 47 (1957) overruled on other grounds in Twombly 550 U.S. 544(2007)). Raising a completely new theory of liability, with only attenuated connection to the complaint, in a brief in opposition to a motion to dismiss does not grant Defendant fair notice of Plaintiffs' claim or the grounds upon which it rests. If Plaintiffs wish to further pursue this first new theory of liability they must request leave to file a fourth amended complaint.*fn5

The grounds underlying Plaintiffs' second new theory of liability are presented piecemeal throughout Plaintiffs' brief in opposition to Defendant's motion to dismiss. Plaintiffs second new theory alleges Defendant had a policy of discouraging on duty medical staff from transferring inmate to outside facilities without first consulting a licensed medical doctor. Plaintiffs advance in a single sentence their argument stating how their new theory is present in the third amended complaint. Plaintiffs state that Defendant's "affirmative act of discouraging his personnel from following California Cod of Regulations, Title 15, Article 8, Section 3350.2 again violates his duty to make sure that his emergency room is properly staffed with health care practitioners who were trained to avoid Constitutional violations by sending critically injured prisoners to facilities where they could receive the higher level of care required to treat them and prevent their death." Defendant contends this theory is not contained in the third amended complaint. The court finds that, even in the light most favorable to Plaintiffs, their assertion that Defendant's alleged obligation to "provide adequate support personnel" encompasses a duty to not create policies in violation of a state regulatory code or to not discourage medical staff from following a state regulatory code is dubious. Moreover, this theory falls well below the notice pleading requirements of Federal Rule of Civil Procedure 8(a). As stated previously, although Federal Rule of Civil Procedure 8 does not require a claimant to set out in detail the facts upon which he bases his claim, rule 8 does require a short and plain statement that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Lee 250 F.3d at 679. Here, as with Plaintiffs' first new theory, Plaintiffs have not properly complied with the notice pleading requirements of Federal Rule of Civil Procedure 8(a). Plaintiffs second new theory, on its face, appears to allege Defendant policies evinced deliberate indifference because they were in violation of a state regulatory code that is never cited or even mentioned in the third amended complaint. Raising what is essentially a new cause of action in an opposition brief to a motion to dismiss is improper and does not provide Defendant with fair notice of Plaintiffs' claim or the grounds upon which Plaintiffs' claim rests. If Plaintiffs wish to further pursue this first new theory of liability they must file a motion for leave to file a fourth amended complaint.*fn6

D. Plaintiffs' Fifth and Sixth Causes of Action

Defendant has moved this court to dismiss with prejudice Plaintiffs' fifth and sixth causes of actions as either time-barred or for failure to state a claim upon which relief can be granted. The fifth cause of action is brought by Marie Lucero as guardian ad litem for plaintiff Daniel Provencio, Jr. alleging Defendant violated Plaintiff's due process rights under the Fourteenth Amendment. The sixth cause of action is brought by plaintiff Nancy Mendoza and plaintiff Johnny Gallegos Provencio alleging Defendant violated Plaintiffs' due process rights under the Fourteenth Amendment. Defendant offers only a footnote in support of his motion to dismiss. Defendant states:

Plaintiffs' fifth and sixth claims are derivative of the first three claims, and essentially incorporate the factual allegations and theories of liability. The fifth claim is brought by decedent Daniel Provencio's ("decedent") son, Daniel Provencio, Jr., for wrongful death under [sic] either the Fourteenth Amendment, and the sixth claim is brought by decedent's natural parents, also for wrongful death under [sic] either the Fourteenth Amendment. The first four claims are brought by the estate of decedent Daniel Provencio (hereinafter "decedent"), acting through "Daniel Provencio, Jr. as successor in interest to Daniel Provencio, deceased" (hereinafter "the estate").

Notice of Mot. To Dismiss at 6.

Defendant is correct that Plaintiffs' claims essentially incorporate the same factual allegations as Plaintiffs' other claims. However, Defendant is incorrect that Plaintiffs' claims are "derivative." Plaintiffs may individually assert a Fourteenth Amendment claim based on the deprivation of their liberty interest arising out of the familial relations with decedent, Provencio. See Guess v. Byrd, 137 F.3d 1126, 1134 (9th Cir. 1998). The standard for such a violation is based on substantive due process. See Moreland v. Las Vegas Metropolitan Police Dept., 159 F.3d. 365, 371 (9th Cir. 1998). To prevail on a Fourteenth Amendment claim arising out of the loss of a familial relationship, a plaintiff must show that the Defendant's conduct shocks the conscience. Id. at 372. What state of mind shocks the conscience depends on the circumstances of a particular case. Id. As Plaintiffs' fifth and sixth causes of action are not time-barred by California's "doe" pleading procedure and Defendant has not properly briefed the standards applicable to Plaintiffs' Fourteenth Amendment claims, the court finds, viewing the complaint in the light most favorable to the Plaintiffs, the Defendant has not met his burden. The court therefore denies Defendant's motion to dismiss Plaintiffs' fifth and sixth causes of action against Defendant.

CONCLUSION AND ORDER

Defendant's motion to dismiss is hereby, GRANTED in part, and DENIED in part. The court ORDERS that:

1. Defendant's motion to dismiss Plaintiffs' second cause of action is GRANTED, in relation to Defendant, Dr. Michael Songer, only.

2. Defendant's motion to dismiss Plaintiffs' third cause of action is DENIED.

3. Defendant's motion to dismiss plaintiff, Daniel Provencio Jr.'s fifth cause of action is DENIED.

4. Defendant's motion to dismiss plaintiffs, Nancy Mendoza and Johnny Gallegos Provencio's, sixth cause of action is DENIED.

5. Plaintiffs are given leave to file a motion to file an amended complaint within twenty days of this order's date of service.

IT IS SO ORDERED.


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