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Carl Wicklund v. Queen of the Valley Medical Center

December 8, 2010

CARL WICKLUND, PLAINTIFF,
v.
QUEEN OF THE VALLEY MEDICAL CENTER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. On August 18, 2010, plaintiff consented to the jurisdiction of the undersigned. On September 2, 2010, the court dismissed plaintiff's complaint with leave to amend. On October 13, 2010, plaintiff filed a first amended complaint, which the instant order addresses.

Again named as defendants are Queen of the Valley Hospital, North Bay Health Care, the California Department of Corrections and Rehabilitation ("CDCR"), Dr. Traquina, Dr. Dassah and Dr. Hsieh.

Plaintiff alleges that in 2005, he began experiencing chest pain. For the next few years, he allegedly continued to suffer from chest and lung pain. On May 4, 2009, plaintiff was taken to Vaca Valley Hospital because he suffered from a heart attack. Seven days later, he was taken to defendant Queen of the Valley Hospital where he underwent an angioplasty. The angioplasty allegedly resulted in damage to plaintiff's heart that forced the doctors to perform an emergency by-pass. Plaintiff returned to prison eleven days later.

On September 28, 2009, plaintiff was taken to defendant North Bay Medical Facility where a pace-maker was installed in his chest. Plaintiff allegedly did not know what procedure was being performed until after the surgery. When plaintiff returned to prison, he allegedly received no follow-up care, later learning that defendant Dr. Dassah had dropped plaintiff from his case load.

In the first amended complaint, plaintiff alleges that defendant Queen of the Valley Hospital has a policy of having unqualified surgeons perform surgery on inmates. Plaintiff alleges that he suffered injuries as a result of this policy following his angioplasty and emergency by-pass surgery. These allegations state a potentially colorable claim for relief against defendant Queen of the Valley Hospital.

Plaintiff alleges that defendant North Bay Health Care has a policy of allowing its doctors to perform experimental or unnecessary surgery. Plaintiff alleges that he was injured as a result of this policy because the installation of his pacemaker was unnecessary and has made his life-threatening medical condition more severe. These allegations state a potentially colorable claim for relief against defendant North Bay Health Care.

The Eleventh Amendment bars suits brought by private parties against a state or state agency unless the state or the agency consents to such suit. See Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978) ( per curiam); Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982). Although the Eleventh Amendment is not jurisdictional, the court may raise the defect on its own. Wisconsin Department of Corrections v. Schacht, 524 U.S. 381, 389 (1998); Edelman v. Jordan, 415 U.S. 651, 677-78 (1974). In the instant case, the State of California has not consented to suit. Accordingly, plaintiff's claims against defendant CDCR are legally frivolous and must be dismissed. The September 2, 2010 order also advised plaintiff that his claims against defendant CDCR were barred by the Eleventh Amendment. Accordingly, because plaintiff cannot state a colorable claim against defendant CDCR, the claims against this defendant are dismissed. If plaintiff files a second amended complaint, he should not include any claims against defendant CDCR.

Plaintiff alleges that defendant Traquina, as the Chief Medical Officer of California State Prison-Solano, should have known that the medical care plaintiff received was constitutionally inadequate. Plaintiff alleges that he gave defendant Traquina notice of the inadequate medical care by way of his administrative grievances. Plaintiff alleges that defendant Traquina chose to ignore his grievances.

Defendants sued in their individual capacity must be alleged to have: personally participated in the alleged deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or implemented a policy that repudiates constitutional rights and was the moving force behind the alleged violations. Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991); Hansen v. Black, 885 F.2d 642 (9th Cir. 1989); Taylor v. List, 880 F.2d 1040 (9th Cir. 1989). "Although a § 1983 claim has been described as 'a species of tort liability,' Imbler v. Pachtman, 424 U.S. 409, 417, it is perfectly clear that not every injury in which a state official has played some part is actionable under that statute." Martinez v. State of California, 444 U.S. 277, 285 (1980). "Without proximate cause, there is no § 1983 liability." Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996).

The search, which was performed in accordance with this constitutionally valid strip search policy, was subsequently ratified by the School Board when Mr. Williams filed a grievance. Therefore, Williams' only grasp at evoking municipal liability under § 1983 is to show that this subsequent ratification is sufficient to establish the necessary causation requirements. Based on the facts, the Board believed Ellington and his colleagues were justified in conducting the search of Williams. There was no history that the policy had been repeatedly or even sporadically misapplied by school board officials in the past. Consequently, the School Board cannot be held liable for the ratification of the search in question, because this single, isolated decision can hardly constitute the "moving force" behind the alleged constitutional deprivation. Williams v. Ellington, 936 F.2d 881, 884-85 (9th Cir. 1991).

The undersigned is unwilling to adopt a rule that anyone involved in adjudicating grievances after the fact is per se potentially liable under a ratification theory. However, this is not to say that persons involved in adjudicating administrative disputes, or persons to whom complaints are sometimes made can never be liable under a ratification theory. If, for example, a reviewing official's rejections of administrative grievances can be construed as an automatic whitewash, which may have led other prison officials to have no concern of ever being reprimanded, a ratifying official may be liable for having put a defective policy in place.

Plaintiff's claim that he put defendant Traquina on notice of the alleged inadequate medical care through his administrative grievances is vague and conclusory because he does not allege when his grievances were filed or how defendant Traquina allegedly responded to them. The undersigned cannot determine whether the grievances were filed "after the fact," or whether plaintiff brought ongoing problems to defendant Traquina's attention. It is also unclear whether defendant Traquina personally responded to them.

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Plaintiff's claim that defendant Traquina is ...


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