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Victory v. Barber

September 16, 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 ADMINISTRATIVE REMEDIES BE GRANTED IN PART AND DENIED IN PART (Docs. 44 and 49)

OBJECTIONS, IF ANY, DUE WITHIN 30 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 administrative remedies pursuant to 42 U.S.C. § 1997e(a). (Doc. 44.) On September 18, 2008, defendants Sacks, Salazar, and Kushner also filed a motion to dismiss for failure to exhaust administrative remedies. (Doc. 49.) 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. Summary of Plaintiff's Amended Complaint

Plaintiff was incarcerated at Pleasant Valley State Prison ("PVSP") at the time the alleged events which gave rise to this action occurred. In his amended complaint, Plaintiff alleges that he suffers from Osgood Schlatter disease, a degenerative disc disease, and osteoarthritis. (Doc. 12, Exh. A, Pl.'s Decl. ¶ 1.) Plaintiff allegedly suffered injuries in a September 2003 fall and grieved the inadequacy of Plaintiff's subsequent medical treatment. Plaintiff alleges that defendant Neubarth only ordered a ninety day low bunk chrono, and denied Plaintiff's requests for: 1-year low bunk chrono, 1-year low tier chrono, 1-year eggcrate mattress chrono, MRI tests on Plaintiff's low back, knees, and right shoulder, and a specialist to interpret the MRI. (Pl.'s Decl. ¶¶ 1-2.) Plaintiff also alleges that defendant Neubarth had a conflict of interest by being on the Chrono committee that denied Plaintiff's requested chronos. (Pl.'s Decl. ¶ 5.) Plaintiff alleges that defendant Salazar, in his review of Plaintiff's grievance, submitted requests for Plaintiff's chronos and for referral to an orthopedic specialist for determination of the necessity of an MRI for Plaintiff's knees and shoulder. (Pl.'s Decl. ¶ 4.) Defendant Salazar failed to include a request for MRI for Plaintiff's low back. (Pl.'s Decl. ¶ 4.) Plaintiff further alleges that defendants Ortiz and Salazar interfered and interrupted any renewal of Plaintiff's prescription for Neurontin without prescribing equivalent alternative medication. (Pl.'s Decl. ¶ 6.)

Plaintiff alleges he was seen by Dr. Tanji, an orthopedic specialist, who recommended a pain management specialist, an eggcrate mattress, and a bone scan of Plaintiff's right shoulder.

(Pl.'s Decl. ¶ 10.) Plaintiff alleges that defendant Kushner denied referral to a pain management specialist, 1-year renewal of the eggcrate chrono, bone scan of Plaintiff's right shoulder, and denied previously prescribed medications (such as Celebrex) other than Tylenol. (Pl.'s Decl. ¶¶12-14.) Plaintiff alleges that defendant Kushner falsely reported that Plaintiff had refused treatment. (Pl.'s Decl. ¶12.) Plaintiff alleges that defendant Bresler ignored Plaintiff's complaints regarding defendant Kushner's treatment. (Pl.'s Decl. ¶¶ 15-16.) Plaintiff alleges that defendants Bresler and Smith did not identify all of Plaintiff's spinal injuries in responding to Plaintiff's second appeal. (Pl.'s Decl. ¶¶ 17-20.) Plaintiff alleges that defendant Barber misinterpreted the orthopedic specialist's report and failed to follow the orthopedic specialist's recommendations. (Pl.'s Decl. ¶¶ 25-26.)

Plaintiff alleges that all defendants forced Plaintiff to be without pain medication, causing Plaintiff to endure chronic and substantial pain on a daily basis. (Pl.'s Am. Compl. ¶ 3.) Plaintiff alleges that all defendants denied or delayed Plaintiff's requests for a renewal of his previously prescribed chronos, namely the 1-year eggcrate mattress chrono, and a bone scan of Plaintiff's right shoulder. (Pl.'s Am. Compl. 5-7, ¶¶ 4-6.)*fn2

C. 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. P. 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. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.

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) (quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001)) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'").

2. Defendant Neubarth's Motion

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

In his opposition, Plaintiff contends that 1) defendant 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) defendant Neubarth is not entitled to qualified immunity; and 3) Plaintiff's allegations are sufficient to state an Eighth Amendment claim. (Doc. 52, Pl.'s Opp'n to Defs.' Mot. to Dismiss 34-41.) 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. (Def. Neubarth's Mot. to Dismiss 5-6.) Defendant refers to the Waiver of Service Returned Executed by the U.S. Marshals, which indicates that defendant Neubarth's former employment address is PVSP. (Doc. 35.) Plaintiff argues that an injunction may be necessary if Plaintiff is transferred to a facility in which defendant Neubarth is potentially working. (Pl.'s Opp'n 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 defendant Neubarth works at any predictable time in the future. See Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986) (finding that inmate who was transferred to ...


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