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Howard v. Sullivan

October 9, 2009

CLARENCE E. HOWARD, PLAINTIFF,
v.
W. J. SULLIVAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF EQUAL PROTECTION CLAIM AND STATE LAW TORT CLAIMS (Doc. 31) OBJECTIONS DUE WITHIN THIRTY DAYS

Findings and Recommendations Following Screening of Second Amended Complaint

I. Screening Requirement

Plaintiff Clarence E. Howard, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 6, 2007. On April 11, 2008, the Court dismissed Plaintiff's complaint, with leave to amend, for failure to comply with Federal Rule of Civil Procedure 8(a). Plaintiff filed an amended complaint on May 12, 2008, and on March 4, 2009, the Court found the amended complaint stated a cognizable due process claim against Defendant Kamel, and ordered Plaintiff to either file a second amended complaint or notify the Court of his willingness to proceed only against Defendant Kamel on the due process claim. Pending before the Court is Plaintiff's second amended complaint, filed May 18, 2009.

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

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)(2). 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 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusion are not. Iqbal, 129 S.Ct. at 1949.

Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (emphasis added). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal at 1949-50; Moss at 969.

II. Plaintiff's Claims

Plaintiff, who is incarcerated at the California Correctional Institution in Tehachapi, alleges that Doctor Kamel, a psychiatrist at the prison, violated his constitutional rights by ordering the involuntary administration of an antipsychotic drug on July 6, 2006. Plaintiff alleges that he did not receive notice and an opportunity to be heard, and that Defendant did not obtain judicial authorization for the injection. Plaintiff denies having any psychiatric problems, taking any medication for psychiatric problems, or behaving in any manner that necessitated medication. When Plaintiff inquired where Defendant obtained the authorization to medicate him, Defendant told Plaintiff, "They let me do what I want to do around here," and left.

Approximately ten minutes after Defendant informed Plaintiff that he was going to be involuntarily medicated, Plaintiff was taken to the infirmary by two sergeants, placed in five-point restraints, and injected by a nurse with Geodon, an antipsychotic medication. Plaintiff alleges that as a result of the medication, he suffered daily vomiting when eating, vision problems, muscle spasms, locking nerves in his right hand, electroencephalographic memory problems, extreme drowsiness, headaches, loss of appetite, dry mouth, and perspiration problems.

A. Equitable Relief and Official Capacity Claims

In addition to money damages, Plaintiff seeks a declaration that his rights were violated and an order prohibiting the practice of involuntary administration of antipsychotic medication without due process.

Equitable remedies are "unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again - a 'likelihood of substantial and immediate irreparable injury.'" City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660 (1983) (quoting O'Shea v. Littleton, 414 U.S. 488, 502, 94 S.Ct. 669 (1974)). In this instance, it is the past conduct of Defendant which gives rise to Plaintiff's claims for relief, and should Plaintiff prevail, Plaintiff's injury will not go unrecompensed because Plaintiff has an adequate remedy at law. Id. Accordingly, dismissal of Plaintiff's claims for equitable relief is appropriate.

Plaintiff also alleges he is suing Defendant in his individual and official capacities. This is a suit for money damages, and the Eleventh Amendment bars official capacity claims for money damages. Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Plaintiff may proceed against Defendant in his personal capacity, Hafer v. Melo, 502 U.S. 21, 30, 112 S.Ct. 358 (1991); Porter v. ...


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