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Grangetto v. Minn

November 10, 2010

MARK GRANGETTO, PLAINTIFF,
v.
KYUNGTAK MINN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS BE GRANTED (Docs. 12, 13) OBJECTIONS DUE WITHIN 30 DAYS

Plaintiff Mark Grangetto ("Plaintiff") is a state prisoner in this civil rights action. At the time of the events described in his complaint, Plaintiff was in the custody of the California Department of Corrections and Rehabilitation ("CDCR") and incarcerated at the California State Prison in Corcoran, California ("CSP-Corcoran"). Plaintiff is suing under Section 1983 for the violation of his rights under the Eighth and Fourteenth Amendments. Plaintiff also alleges violations of 42 U.S.C. §§ 1985 and 1986, and California state law.*fn1 Plaintiff names Kyungtak Minn, Erene S. Soliman, Edgar Clark, Jeffrey Neubarth, Wang, and Sanchez as defendants ("Defendants"). Plaintiff also identifies Does 1 through 50 as unidentified CDCR personnel who are liable for the claims raised in his complaint.

On August 3, 2010, Defendants Minn, Soliman, Clark, Wang, and Sanchez filed a motion to dismiss. (Docs. #12, 13.) Defendant Neubarth was not named in the original motion to dismiss and instead filed a notice joining the motion on August 31, 2010. (Doc. #20.) Plaintiff contends that Neubarth's notice of joinder was untimely. (Doc. #21.) Plaintiff filed an opposition to the motion to dismiss on August 28, 2010. (Doc. #16.) Defendants filed a reply on September 3, 2010.

For the reasons set forth below, the Court finds that Plaintiff's first amended complaint fails to state any cognizable federal claims. The Court will recommend that Plaintiff's first amended complaint be dismissed with leave to file a second amended complaint.

I. Background

A. Plaintiff's Claims

Plaintiff alleges that he suffers from multiple disabilities and medical conditions, including blindness in both eyes, inability to walk, inability to use his left arm, Type I Diabetes, diabetic neuropathy, Hepatitis C, neurological dysfunction, Osteomyelitis, and skin breakdown. During the events described in his complaint, Plaintiff was under the care and custody of CDCR at CSP-Corcoran. Plaintiff alleges that he was "in a chronic state of discomfort and neurogenic pain" due to "the lack of treatment, and the lack of accommodations, such as a proper mattress." (First Am. Compl. for Damages for Willful Violations of Civil Rights and for Pendent State Claims, Doc. 3 ("FAC") ¶ 42.) Plaintiff alleges generally that "[a]t all relevant times, Defendants, and each of them, knew, or should have known, about the medical complications faced by Plaintiff and acted to prevent them."*fn2 (FAC ¶ 43.) Plaintiff claims Defendants violated his civil rights by providing inadequate or incompetent medical care for his various conditions.

Plaintiff claims that he was prescribed medication "without regard to the contraindications placing Mr. Grangetto's health and safety at risk." (FAC ¶ 45.) "Defendants, including Defendant Minn and his staff, have prescribed and administered psychotropic medications... [that] have been known for years to cause neurological damage, including Tardive Dyskinesia, and to cause Diabetes." (FAC ¶ 46.) As a result, Plaintiff developed Type I Diabetes. (FAC ¶ 47.) Plaintiff also alleges that he suffers from symptoms that suggest that he suffers from Tardive Dyskinesia. (FAC ¶¶ 48, 49.) Plaintiff claims that Defendants ignored the risks of diabetes and Tardive Dyskinesia, even after observing indications of Tardive Dyskinesia. (FAC ¶ 50.)

Plaintiff also alleges that he was given psychotropic medication for years without Plaintiff's informed consent. (FAC ¶ 51.) Plaintiff was informed about the connection between his neurological symptoms and the psychotropic medications on June 1, 2009, by a forensic psychiatrist. (FAC ¶ 52.) On September 15, 2009, Plaintiff "reported the symptoms of Tardive Dyskinesia and requested that CDCR obtain a diagnosis from a qualified neurologist. CDCR refused." (FAC ¶ 53.) "On January 4, 2010, Plaintiff obtained a court order requiring Defendants to stop administering psychotropic medications without Plaintiff's consent." (FAC ¶ 54.) However, Defendants re-instituted the involuntary administration of psychotropic medications at the time Plaintiff's complaint was filed. (FAC ¶ 55.)

Plaintiff also claims that Defendants discontinued Plaintiff's pain medication and caused Plaintiff to suffer painful symptoms of withdrawal. (FAC ¶ 56.) On July 16, 2008, Defendant Neubarth diagnosed Plaintiff with chronic pain but discontinued Plaintiff's pain medication. (Id.) Neubarth did not inform Plaintiff about the order discontinuing his pain medication and of the consequences of the symptoms of withdrawal that would result from discontinuing the pain medication. (Id.) When Plaintiff began to suffer intense pain from withdrawal, Neubarth did not provide any treatment. (Id.) Plaintiff complained about the withdrawal pains and begged for pain medication.*fn3 (FAC ¶ 57.) Plaintiff began striking the door to his hospital room for relief. (Id.) "When Defendants responded... [they] dragged Plaintiff to a different room where he was forced into a five-point restraint and left on a thin mattress on the floor for days."*fn4 (FAC ¶ 58.)

While restrained, Plaintiff suffered from "skin breakdown." (FAC ¶ 59.) Plaintiff alleges that "Defendants then failed to treat, or provided negligent treatment of, the skin breakdown." (FAC ¶ 60.) When Plaintiff requested treatment, "Defendants retaliated against Plaintiff when they ignored his request for treatment and dragged him to a different room where he was forced into a five-point restraint and left on a thin mattress on the floor for days." (FAC ¶ 62.)

Plaintiff also alleges that Defendants failed to treat Plaintiff's diabetes, and as a result, Plaintiff suffers from "complications," such as "its effect on Plaintiff's circulation." (FAC ¶ 68.) Plaintiff contends that poor circulation has caused ingrown toenails and infection in his toes. (FAC ¶ 69.) Plaintiff contends that "Defendants, including Clark and Neubarth, ordered surgery to treat the condition" but "Defendant Sanchez negligently performed the surgery" and "Defendants botched Plaintiff's post-surgical care." (FAC ¶ 69.) Plaintiff alleges that the surgical wounds on his toes became infected after the surgery "as a result of neglect and deliberate indifference." (FAC ¶ 69.) Plaintiff further alleges that the treatment of the infection "was botched" and "the infection spread into Plaintiff's bones[,] and he now suffers from Osteomyelitis." (FAC ¶ 70.)

Plaintiff contends that "Defendants failed to properly train co-defendants to protect patient health and safety." (FAC ¶ 63.) Plaintiff also contends that "Defendants retaliate[d] against Plaintiff for filing complaints in violation of his rights as a patient and his right to free speech." (FAC ¶ 64.) Plaintiff alleges that "[s]ome complaints or grievances are not processed by staff as a way to retaliate against Plaintiff." (FAC ¶ 66.)

Plaintiff's First Cause of Action claims that all defendants violated Plaintiff's Eighth and Fourteenth Amendment rights through their deliberate indifference to Plaintiff's health and safety. (FAC ¶¶ 73-87.) Plaintiff's Second Cause of Action claims that all defendants violated California Welfare & Institutions Code § 15600, et. seq., by failing to provide Plaintiff, a "dependent adult," with adequate medical care. (FAC ¶¶ 88-100.) Plaintiff's Third Cause of Action claims that all defendants provided negligent medical treatment. (FAC ¶¶ 101-07.) Plaintiff's Fourth Cause of Action claims that all defendants retaliated against Plaintiff for his exercise of his constitutional rights. (FAC ¶¶ 108-12.) Plaintiff's Fifth Cause of Action claims that all defendants conspired to deprive Plaintiff of his civil rights in violation of 42 U.S.C. §§ 1985-1986. (FAC ¶¶ 113-24.) Plaintiff's Sixth Cause of Action claims that all defendants are liable for intentional infliction of emotional distress. (FAC ¶¶ 125-33.)

B. Defendants' Motion to Dismiss

Defendants' motion to dismiss argues that Plaintiff's first amended complaint fails to state any cognizable federal or state law claims. Defendants also argue that Plaintiff's claims for injunctive relief must be brought in the Plata and Coleman class actions,*fn5 that Plaintiff has failed to join an indispensable party, that Plaintiff has failed to exhaust administrative remedies, and that the Court should strike Plaintiff's allegations regarding CDCR. Defendants further argue that, at a minimum, Plaintiff should be required to provide a more definite statement of his claims in an amended complaint.

Specifically, Defendants contend that they are entitled to dismissal under Federal Rule of Civil Procedure 12(b)(6) because Plaintiff's first amended complaint fails to state any cognizable claims under Section 1983 or under state law. With respect to Defendants Minn, Soliman, Clark, Wang, and Sanchez, Defendants contend that Plaintiff has only offered conclusory assertions of liability that are not supported by any facts. Defendants also note that Plaintiff has failed to allege facts that Defendants personally participated in the deprivation of Plaintiff's constitutional rights, knew that Plaintiff's rights were being violated and failed to intervene, or implemented a policy that was in itself a repudiation of constitutional rights and the moving force of the constitutional violation.

II. Discussion

A. Legal ...


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