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Jimmie Stephen v. Federal Receiver J.C. Kelso

February 2, 2012

JIMMIE STEPHEN, PLAINTIFF,
v.
FEDERAL RECEIVER J.C. KELSO, ET AL., DEFENDANTS.



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

ORDER and FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis,*fn1 in this civil rights action filed pursuant to 42 U.S.C. § 1983. The action proceeds against defendant physicians Hsieh and Traquina, pursuant to plaintiff's Second Amended Complaint. (Dkt. No. 22.) Plaintiff initiated this action while he was incarcerated at California State Prison-Solano.

Plaintiff was recently transferred to San Quentin State Prison. Several matters are pending.*fn2

Addressed herein are the following: (1) defendants' motion to dismiss defendant Traquina from this action, and to dismiss plaintiff's damages claims against both defendants in their official capacities; (2) plaintiff's motion to strike the affirmative defenses set forth in defendant Hsieh's answer to the complaint; (3) plaintiff's motion to strike discovery propounded on him by defendant Hseih; (4) plaintiff's request to file a proposed supplemental complaint; and (5) plaintiff's motions for preliminary injunctive relief.

For the reasons set forth below, the court orders that: plaintiff's motion to strike the affirmative defenses set forth in defendant Hsieh's answer to the Second Amended Complaint is denied; plaintiff's motion to strike defendant Hsieh's discovery requests is granted, without prejudice to the discovery requests being later propounded; and plaintiff's motion for issuance of an order to show cause is denied. Additionally, the undersigned recommends that: defendants' motion to dismiss be granted in part and denied in part -- the court should dismiss plaintiff's damages claims against defendants in their official capacities, but deny defendants' motion to dismiss defendant Traquina from this action; plaintiff's motions for preliminary injunctive relief should be denied; plaintiff's request for leave to file his proposed Amended Supplemental Complaint should be granted, and Dr. Wenneker should be added as a defendant in this action; and plaintiff should be granted leave to file, within twenty-eight (28) days after the filing date of the district judge's order, a comprehensive Third Amended Complaint against defendants Hsieh, Traquina and Wenneker. //// ////

I. Introduction

Pursuant to the operative Second Amended Complaint ("SAC" or "complaint") (Dkt. No. 22), plaintiff alleges that, since he arrived at California State Prison-Solano ("CSPSOL"), on November 14, 2008, he complained of stomach pains to his assigned physician, Dr. Hsieh, and repeatedly requested a colonoscopy. Plaintiff alleges that Dr. Hsieh unreasonably denied plaintiff's requests for a colonoscopy ("on 12-1-09, 2-5-10, 3-5-10 and 3-8-10" (id. at 6)), until June 7, 2010, when plaintiff obtained his first colonoscopy. The colonoscopy was performed by Dr. Sogge, who removed two polyps during the procedure, but determined that a third polyp was "so large" that plaintiff needed to be scheduled for "emergency" surgery (a colectomy resection), which Dr. Sogge allegedly sought to schedule on June 14, 2010. (Id. at 3,

6.) Plaintiff complains that it took Dr. Hsieh "45 days"*fn3 to arrange for this "emergency" surgery, which was performed on July 21, 2010, by Dr. Wenneker, at Queen of the Valley Hospital, and required the removal of six inches of plaintiff's colon. (Id.) (The administrative appeal on this matter indicates that plaintiff was seen at the hospital on June 22, 2010, for a surgical consultation, and that he was hospitalized for the surgery from July 20, 2010, until July 26, 2010. (Dkt. No. 36 at 6-7, 13.))

The remaining allegations of the Second Amended Complaint are less clear. Plaintiff appears to allege that, after his July 2010 surgery, it was recommended that he have "further surgery" (or a follow-up visit) "within 90 days from 10-12-10," "by 'Dr. Wenneker' of 'Angel Mercy Hospital.'" (Dkt. No. 22 at 3, 5, 6.) In his opposition to the motion to dismiss, plaintiff states that he "'finally saw Dr. Lee' on 2-16-11 when 'requested' and 'right' to 'monthly visits' after 7-21-10 'serious surgery' . . . ." (Dkt. No. 36 at 16.)

Although the Second Amended Complaint asserts a violation of plaintiff's rights under the Fifth, Eighth and Fourteenth Amendments (Dkt. No. 22 at 8), the court has construed the complaint to state only a potentially cognizable Eighth Amendment claim for deliberate indifference to plaintiff's serious medical needs. (Dkt. No. 23 at 1-2 ("based on plaintiff's allegations that a diagnostic colonoscopy was improperly delayed and, once it was completed and formed the basis of a physician-recommended 'urgent' surgery, that plaintiff's colon surgery was improperly delayed, resulting in the loss of a portion of plaintiff's colon and the possibility of further surgery").

Pursuant to the Second Amended Complaint, plaintiff sues defendants Hsieh and Traquina in both their individual and official capacities. Plaintiff seeks ten million dollars ($10,000,000) in compensatory damages, an indefinite amount of punitive damages, and broadly seeks "declaratory and injunctive relief." (Dkt. No. 22 at 3, 8.)

On November 21, 2011, plaintiff filed a Notice of Change of Address informing the court that he had been moved to San Quentin State Prison ("San Quentin"). (Dkt. No. 50.)

II. Defendants' Motion to Dismiss

Defendants move to dismiss defendant Traquina from this action, on the ground that plaintiff's only claim against Dr. Traquina, an Eighth Amendment claim for deliberate indifference to serious medical needs, is impermissibly premised on Dr. Traquina's alleged "supervisory liability." In addition, defendants move to dismiss plaintiff's claim for monetary damages against both defendants in their official capacities, on the ground that it is precluded by the Eleventh Amendment. Plaintiff filed an opposition to the motion to dismiss (Dkt. No. 36); defendants filed a reply (Dkt. No. 38).

In tandem with filing their motion to dismiss (Dkt. No. 31), defendants filed an answer on behalf of defendant Hsieh (Dkt. No. 32), conceding that "Dr. Hsieh filed an answer to Stephen's complaint because it states an Eighth Amendment claim at this stage" (Dkt. No. 43 at 2 n.1).

For the following reasons, the court recommends that defendants' motion to dismiss Dr. Traquina from this action be denied, but that defendants' motion to dismiss plaintiff's claim for monetary damages against both defendants in their official capacities be granted.

A. Legal Standards

Rule 12(b)(6), of the Federal Rules of Civil Procedures, authorizes motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F. 3d 962, 965 (9th Cir. 1999). To survive dismissal for failure to state a claim, a claim must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). That is, "[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). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F. 2d 1542, 1555 n.19 (9th Cir. 1990).

A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F. 2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply the essential elements of a claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F. 2d 266, 268 (9th Cir. 1982).

B. Dr. Traquina

Defendants contend that Dr. Traquina should be dismissed from this action, on the ground that plaintiff's only claim against Dr. Traquina is premised on his alleged "supervisory liability." At all relevant times, Dr. Traquina was the Chief Medical Officer ("CMO") at CSP-SOL.

"Supervisory liability is imposed against a supervisory official in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates, for his acquiescence in the constitutional deprivations of which the complaint is made, or for conduct that showed a reckless or callous indifference to the rights of others." Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009) (citations and internal quotations omitted). "Under Section 1983, supervisory officials are not liable for actions of subordinates on any theory of vicarious liability. A supervisor may be liable if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989) (citations omitted). Thus, "[a]lthough there is no pure respondeat superior liability under § 1983, a supervisor is liable for the acts of his subordinates 'if the supervisor participated in or directed the violations, or knew of the violations [of subordinates] and failed to act to prevent them.'" Preschooler II v. Clark County School Bd. of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007), quoting Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Additionally, "[s]upervisory liability exists even without overt personal participation in the offensive act if supervisory officials implement a policy so deficient that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional violation.'" Hansen, 885 F.2d at 646, quoting Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987).

On a motion to dismiss, the plaintiff "does not need to show with great specificity how each defendant contributed to the violation of his constitutional rights. Rather, he must state the allegations generally so as to provide notice to the defendants and alert the court as to what conduct violated clearly established law. See Hydrick v. Hunter, 466 F.3d 676, 689-90 (9th Cir. 2006) (denying policy-making officials qualified immunity at the motion to dismiss stage based on inferences that the officials played an instrumental role in the alleged abuses)." Preschooler II, at 1182.

The Second Amended Complaint only generally references defendant Traquina, e.g., pursuant to allegations that plaintiff's colonoscopy and first surgery were delayed "based on 'overcrowding' and 'monies' or 'budgetary' . . . under 'policy' 'custom' 'practice' of 'Kelso' and 'Traquina'." (Dkt. No. 22 at 6; see also id. ("under policy practice 'Kelso' 'Traquina' 'Swarthout'"); id. at 7 ("under policy of 'Swarthout' 'Traquina' and 'Kelso' based on 'willful overcrowding'"). Similarly, in his opposition to defendants' motion to dismiss, plaintiff asserts that Dr. Traquina demonstrated "personal involvement" in the conduct challenged by this action, by "'failing to implement' and 'maintain' 'a' ...


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