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Johnson v. California Dep't of Correction and Rehabilitation

August 6, 2009

HOWARD JOHNSON, HUSBAND OF DECEDENT VELMA JEAN BESS, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTION AND REHABILITATION; MATTHEW CATE, SECRETARY; ROBIN DEZEMBER, CORRECTIONAL HEALTHCARE MARY LATTIMORE, ACTING WARDEN, SERVICES CHIEF DEPUTY SECRETARY; CALIFORNIA CORRECTIONS WOMAN'S FACILITY; KENT EICHENBERGER, WOMEN; SAMANTHA DENNIS, AS WARDEN, VALLEY STATE PRISON FOR EXECUTOR OF THE ESTATE OF DECEDENT VELMA BESS; AND DOES 1 THROUGH 100, DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER RE DEFENDANTS' MOTION 12(b)(1) AND 12(b)(6) TO DISMISS UNDER RULE

I. INTRODUCTION

Before the court is a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 32.) The motion is brought collectively by Defendants California Department of Corrections and Rehabilitation, Matthew Cate, Mary Lattimore, and Kent Eichenberger ("Defendants"). The motion is directed to all the claims asserted by Plaintiff Howard Johnson ("Plaintiff") in the First Amended Complaint ("FAC"). These claims arise from the incarceration of a female prisoner, Velma Jean Bess, at the Central California Women's Facility in Madera County, California. While incarcerated, Bess died from cancer. In the FAC, Plaintiff claims to be Bess' surviving husband.

The following background facts are taken from the FAC.*fn1

II. BACKGROUND

A. The Incarceration Of Velma Bess And Her Treatment

In 2000, Bess ("Decedent") was incarcerated for assaulting "Frank Miranda" with a deadly weapon. Allegedly, Decedent and Miranda were "never married." (Doc. 26 at 2.)*fn2

Decedent was first incarcerated at the Valley State Prison for Women and then transferred to the Central California Women's Facility in Madera County. (Id.) In 2003, Decedent was diagnosed with tongue cancer. (Id.) She was transferred from the prison facility to a local hospital where she received radiation and chemotherapy. (Id.) Her cancer then went into remission for approximately six years. (Id.) Plaintiff alleges that the "prison facility failed to promptly monitor [Decedent's] cancer during the six years it was in remission to detect any early signs of recurrence so a recurrence could be properly treated." (Id.)

In August and September 2008, Decedent began passing out, sweating profusely, and suffering from chills, symptoms that Plaintiff alleges "were related to a recurrence and metastasis of her tongue cancer." (Id.) The "prison medical staff" allegedly "prescribed medications that were not related to [Decedent's] medical condition, and her symptoms proceeded to get worse." (Id. at 3.)

In September 2008, Decedent "pass[ed] out," "fell and broke her ankle," and was then transferred to a local hospital for treatment. (Id.) During her stay at the hospital, Decedent was diagnosed with "advanced tongue cancer that had metastasized into her lungs." (Id.) As alleged, "[t]he hospital, after stabilizing [Decedent's] broken ankle, returned her to the prison facility to die." (Id.)

On November 6, 2008, the prison facility transferred Decedent back to the hospital where she was placed on life support. (Id.) Later that day, Decedent was taken off life support and died. (Id.) Decedent's death certificate states that the "onset of the cause of her death" commenced "two months" prior to her death. (Id.)

Plaintiff asserts that Decedent's death certificate contains false information provided by Decedent's daughter, Defendant Samantha Dennis, that Decedent was "Divorced" at the time of her death. (Id.) Plaintiff alleges that he was the husband of Decedent at all times mentioned in the FAC. (Id. at 1.) Plaintiff alleges that Defendant Dennis has refused to allow the death certificate to be amended or corrected. (Id. at 3.)

B. Claims In The FAC

In the FAC Plaintiff asserts five claims. The first two claims are for a violation of Decedent's Eight Amendment rights under 42 U.S.C. § 1983.

In the first claim, Plaintiff asserts an Eight Amendment violation based on the "conditions of [Decedent's] prison confinement." Plaintiff alleges that "Defendants knew Velma Bess['] conditions of imprisonment created a substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to correct it." (Doc. 26 at 4.)

In the second claim, Plaintiff asserts an Eight Amendment violation based on the defendants alleged deliberate indifference to a serious medical need of Decedent. Plaintiff alleges that "Defendants acted with deliberate indifference to the serious medical meed of plaintiff's wife Velma Bess." (Id. at 5.)

In both of the Eight Amendment claims, Plaintiff specifically alleges he is "a beneficiary of the decedent's estate and successor in interest in decedent's causes of action and therefore has ...


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