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Will Moses Palmer, Iii v. Jeanne Woodford

August 19, 2011

WILL MOSES PALMER, III,
PLAINTIFF,
v.
JEANNE WOODFORD, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

(ECF No. 18)

ORDER REQUIRING PLAINTIFF TO EITHER FILE AN AMENDED COMPLAINT OR NOTIFY THE COURT OF WHICH CLAIM HE WISHES TO PROCEED ON IN THIS ACTION / THIRTY DAY DEADLINE

I. Procedural History

Plaintiff Will Moses Palmer, III ("Plaintiff"), a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983, filed this action on April 28, 2006. On January 13, 2009, an order issued finding cognizable claims. (ECF No. 22.) Following service of process Defendants filed a motion to revoke Plaintiff's in forma pauperis status pursuant to 28 U.S.C. § 1915(g) and dismiss this action on July 31, 2009. (ECF No. 37.) On March 22, 2010, Defendants' motion to revoke Plaintiff's in forma pauperis status and motion to dismiss were granted, and this action was dismissed. (ECF No. 51.)

On April 8, 2010 and April 14, 2010, Plaintiff filed duplicate motions for reconsideration of the order dismissing the action and requests for judicial notice. (ECF Nos. 53, 54, 55, 56.) On April 22, 2010, Plaintiff filed a notice of appeal. (ECF No. 57.) On May 25, 2010, the Ninth Circuit issued an order holding the appellate proceeding in abeyance pending resolution of Plaintiff's motions for reconsideration. (ECF No. 61.) On July 26, 2011, this action was reassigned to the undersigned. (ECF No. 63.) On August 5, 2011, an order issued granting Plaintiff's motion for reconsideration and reinstating Plaintiff's in forma pauperis status and reopening this action. (ECF No. 64.)

II. Sua Sponte Screening of Complaint

A. Screening Authority

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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under 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)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).

On January 13, 2009, Plaintiff's complaint was screened and found to state a cognizable claim against Defendants Jordnt, Bardonnex, Berkson, Wang, Huang, Clement, Lemoy, Tarter, Idell, and Key. On May 18, 2009, the United States Supreme Court issued its decision in Iqbal. The decisions since Iqbal erase any doubt that there has been a significant departure from prior cases holding that a complaint may only be dismissed if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Moss v. U.S. Secret Service, 572 F.3d 962, 972 (9th Cir. 2009). Accordingly, in light of the reassignment to the undersigned and the decision in Iqbal, the Court shall exercise its screening authority and sua sponte re-screen Plaintiff's complaint.

The Court finds that Plaintiff's complaint states a cognizable claim against Defendants Jordnt and Bardonnex for retaliation and denial of access to the court in violation of the First Amendment; Defendants Berkson, Wang, and Clement for involuntarily medicating Plaintiff in violation of due process; and Defendant Lemoy for deliberate indifference in violation of the Eighth Amendment; but does not state any other claims for relief under section 1983. However, as discussed below, these claims are unrelated and may not be joined in this action. Accordingly, if Plaintiff wishes to proceed on one of the claims found to be cognizable, he must notify the Court which claim he wishes to pursue in this action. If Plaintiff elects to amend his complaint, his amended complaint must comply with Federal Rule of Civil Procedure 18.

B. Complaint Allegations

Plaintiff is in the custody of the California Department of Corrections and Rehabilitation ("CDCR") and is currently incarcerated at Kern Valley State Prison ("KVSP"). Plaintiff's claims in this action arose after he was deemed a threat to staff at Salinas Valley State Prison ("SVSP") and he was transferred to the Substance Abuse Treatment Facility ("SATF") on November 23, 2005. (First Amended Compl. 3.2, ECF No. 18.) Plaintiff is seeking injunctive relief and compensatory and punitive damages.

Claim One

On December 7, 2005, Plaintiff went before the Unit Classification Committee and was informed that he would be housed in the general population. Plaintiff asked to be provided access to the law library and telephone. Defendant Mendes stated that he was not responsible for providing court ordered phone calls and Plaintiff would have to address his request to the litigation coordinator. After Plaintiff was returned to his assigned cell, he was taken to the C-Facility medical clinic, placed in a holding cell, and issued a CDCR 114-D Administrative Segregation Notice. The notice stated that Defendant Johnson had informed Defendant Gallagher that she feared for her safety due to Plaintiff's presence at CTFS and for that reason he would be placed in administrative segregation ("ASU"). Plaintiff explained to Defendant Gallagher that he had been acquitted of the 2004 battery charge, but Defendant Gallagher instructed Plaintiff be taken to ASU anyway. (Id.)

After his central file was reviewed, it was determined that Plaintiff had been acquitted of the offense and he was informed that he would be placed in general population as soon as a cell became available. Later that same day Defendant Gallagher issued a second CDCR 114-D Administrative Segregation Notice giving the exact same reason for Plaintiff's placement in ASU. Plaintiff requested an investigative employee be assigned for the hearing and that Defendant Johnson be a witness at the hearing. Plaintiff alleges that his due process rights were not honored and he was held in ASU for five months and his wheel chair was taken. (Id.) Plaintiff brings this action against Defendant Mendes for retaliating against Plaintiff by placing him in ASU in violation of the First Amendment and due process. (Id. at 3.22.)

Claim Two

While confined in ASU Plaintiff made multiple requests that his legal property be returned to him, for access to the law library, and the court ordered phone calls. Defendants Lopez and Jordnt repeated refused to provide Plaintiff with his legal documents. Plaintiff showed Defendant Jordnt and Bardonnex a document from the Court requiring him to provide specific legal documents within ten days. Defendants informed Plaintiff that his legal documents had not arrived from SVSP, while fully aware that the R & R log showed that his property had been received on December 7, 2005. Defendants Jordnt and Bardonnex allegedly withheld Plaintiff's property in retaliation for Plaintiff complaining to Sergeant Davis about their refusal to provide Plaintiff access to an adequate law library and weekly telephone calls to the court appointed investigator. Plaintiff's habeas proceeding was terminated because Plaintiff was unable to provide the requested legal documents. (Id.)

Plaintiff alleges that Defendant Jordnt and Bardonnex retaliated against Plaintiff for withholding his legal documents which prevented Plaintiff from submitting documents to the District Court on his appeal. The appeal was denied solely on the ground that Plaintiff did not submit the documents which were withheld by Defendants Jordnt and Bardonnex. (Id. at 3.22.)

Claim Three

As a result of the stress that Plaintiff was experiencing, he requested to see the building psychiatrist. Plaintiff asked the psychiatrist to have him moved to another ASU building due to the problems he was having with the building officers. The psychiatrist informed Plaintiff that she did not have the authority to move Plaintiff to another building, but could only refer Plaintiff to the Correctional Treatment Facility ("CTF") to be evaluated for placement in a mental health crisis bed. (Id.) Upon being questioned, Plaintiff informed the psychiatrist that he was not suicidal, but something kept telling him to bite. (Id. at 3.4-3.5.) The psychiatrist misinterpreted this statement to be that Plaintiff was hearing voices and directed officers to take Plaintiff to the CTF. (Id. at 3.5.)

Defendants Phillips and Hopkins left Plaintiff sitting in the cold rain for fifteen minutes wearing nothing but boxer shorts and a t-shirt. Officer Gonzales saw Plaintiff shivering in the rain, wheeled him back into the building, and provided him with a wool blanket. Defendant Hopkins stated, "Let that asshole freeze." (Id.)

Plaintiff was seen by Defendant Toria who assessed Plaintiff. Plaintiff informed Defendant Toria that he had not received his prescribed pain medication. Defendant Toria told Plaintiff that she would let the doctor know and get his pain medication. Plaintiff was given three pills that he was told were pain medication and muscle relaxers. Plaintiff was later informed that the pills were antipsychotic drugs. These same drugs were administered to Plaintiff on March 18, 19, and 20, 2006, after which Plaintiff refused to take them. (Id.)

Plaintiff alleges that Defendants Toria and Wang prescribed and administered antipsychotic drugs without Plaintiff's knowledge and consent under the false representation that the medication was for pain, in violation of due process and the Eighth Amendment. (Id. at 3.22.)

Claim Four

On March 21, 2006, Plaintiff discussed the effects that the medications were having on him with Defendant Wang. Plaintiff agreed to try a new medication. On March 22, 2006, Plaintiff refused to take any medication because he was still feeling the effects. Plaintiff was placed in five point restraints for failing to take the medication and injected with a antipsychotic drug, plus an additional 20 m. g. as punishment for refusing to take the drugs orally. (Id. at 3.7.) Plaintiff alleges that he was not suffering from any mental illness that required medication. (Id. at 3.8.)

Plaintiff suffers from a ruptured disc and degenerative disc disease. Plaintiff informed Defendants that he was suffering pain from this injury. Defendants Huang, Wang, Berkson, and Clement disregarded his injury and refused to consult a medical doctor regarding the amount of pain he would experience from being placed in five point restraints. (Id. at 3.7.)

After being released from the five point restraints Defendant Wang informed Plaintiff that he would be administered a higher dose of antipsychotic medication every time he refused his medication and would be placed in five point restraints for a longer period of time. When Plaintiff asked about his right to refuse medication Defendant Jackizvich informed Plaintiff that he did not have the right to refuse medication. (Id. at 3.9.)

On March 28, 2006, Plaintiff informed Defendant Clement that he had the right to an advocate at the hearing to decide whether to involuntarily medicate Plaintiff. Defendant Clement responded that she was not aware of the process and would try to find out more information for Plaintiff. (Id.) Plaintiff refused to take his psychotic medication and was placed back in five point restraints and injected with a higher dose of medication. Plaintiff alleges he was not suffering from any mental illness requiring him to be medicated. (Id. at 3.10.)

While Plaintiff was in five point restraints an unidentified defendant ("Doe") entered Plaintiff's room and identified himself as a Certificate Notice Reviewer. He informed Plaintiff that he was there to review the records and determine if there was probable cause. He found probable cause without asking Plaintiff any questions and left. (Id.)

At a later date, Plaintiff met with Defendants Wang and Jackizvich and inquired about the due process procedures that applied to the Keyhea process. Defendant Jackizvich informed Plaintiff that he had no rights to any assistance and directed that Plaintiff be returned to his cell. (Id.)

On April 5, 2006, Plaintiff became aware that the order that he be involuntarily medicated had expired on April 1, 2006. Plaintiff showed the expiration notice to Defendant Ybarra and was informed that the involuntary medication order had been renewed. (Id. at 3.11.)

On April 6, 2006, Defendant Huang admitted that there had been a mistake in providing Plaintiff with antipsychotic medication upon his arrival at CTC and involuntarily medicating Plaintiff. Defendant Huang stated that he had attempted to convince Defendant Berkson to discontinue the involuntary medication of Plaintiff because he was of the opinion that Plaintiff was not suffering from mental illness. (Id. at 3.15.) Defendant Huang believed that Defendant Berkson wanted to teach Plaintiff a lesson by subjecting him to involuntary medication. Defendant Berkson reviewed Plaintiff's medical file and was aware that Plaintiff was not on antipsychotic medication prior to arriving at CSATF. Defendant Berkson ordered Plaintiff to be placed in five point restraints to punish Plaintiff knowing that Plaintiff was being involuntarily medicated by mistake. Defendant Berkson authored a false report stating that Plaintiff threatened to fight medical personnel if they attempted to administer medication involuntarily. (Id. at 3.16.)

On April 7, 2006, Plaintiff informed Nurse Gauthier that his involuntary medication order had expired and requested to see Defendant Allison. (Id. at 3.11.) Defendant Allison listened to Plaintiff's grievance and informed Plaintiff that she would investigate the matter. Plaintiff received a note from Defendant Allison stating that Plaintiff was under a temporary order to be involuntarily medicated and was required to take the medication. (Id. at 3.12.)

On April 13, 2006, Plaintiff received a stack of documents and upon reading them discovered that no temporary order had been issued by the judge. Plaintiff requested that Defendant Clement provide Defendant Tarter's contact information and he refused, stating that the information was confidential. (Id. at 3.12.) Plaintiff asked Defendant Clement for a copy of the order that authorized the involuntary administration of medication beyond the temporary order that expired on April 12, 2006. Defendant Clement stated that there was no order and none was needed. (Id.)

On April 14, 2006, Plaintiff refused to take his medication and Defendant Wang threatened to administer a higher dose of medication and place Plaintiff in five point restraints for two days if he continued to refuse to take the medication orally. Plaintiff stated that he would take the medication if he saw a copy of the order authorizing the involuntary administration of antipsychotic medication. On April 15, 2006, Plaintiff was provided with a letter from Defendant Clement stating that the Court had issued an order to involuntarily medicate Plaintiff. On April 17, 2006, an order issued authorizing Defendants to involuntarily medicate Plaintiff. (Id. at 3.13.) On May 2, 2006, Plaintiff was transferred to Kern Valley State Prison.*fn1 (Id. at 3.16.)

Plaintiff alleges that Defendants Berkson, Wang, Huang, and Clement involuntarily medicated Plaintiff after the order terminated to punish Plaintiff for attempting to use medical staff to assist him in problem solving in violation of ...


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