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Anthony Passer v. Dr. Steevers

March 28, 2012


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


Plaintiff is a state prisoner, incarcerated at California Medical Facility ("CMF"), who proceeds, in forma pauperis and without counsel, in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff challenges the quality of his medical care, commencing with his transfer to CMF in February 2005, shortly after breaking his elbow at California State Prison-Lancaster. Plaintiff alleges that defendants failed to timely authorize and implement a low bunk chrono, causing plaintiff to repeatedly fall in attempting to navigate his high bunk, and resulting in further injuries to plaintiff, particularly to his neck and knee, which the medical defendants allegedly treated with deliberate indifference.

By findings and recommendations filed August 10, 2010, and order filed September 14, 2010, the court denied defendants' motion to dismiss this action, and granted plaintiff leave to file a Second Amended Complaint, subject to the following limitations. (Dkt. Nos. 32, 33.) The court found that plaintiff stated cognizable Eighth Amendment claims for deliberate indifference to his serious medical needs against defendant Dr. Burt (regarding his alleged treatment of plaintiff's neck and knee injuries, upon becoming plaintiff's treating physician in November 2006), and against defendant Dr. Sabin (who commenced treating plaintiff in December 2006, and allegedly declined to prescribe plaintiff pain medication for his neck injury). Plaintiff was granted leave to amend his complaint to add an Eighth Amendment claim against Dr. Alchek (the first physician to examine plaintiff after his June 2006 fall, and thus the first to assess plaintiff's neck injury, and the alleged exacerbation of his knee injury). Plaintiff has done so in the Second Amended Complaint. Plaintiff was also granted leave to amend his complaint to add any defendants who were "directly responsible for the failure of plaintiff to timely obtain a lower bunk, especially to the extent that any such individual allegedly disregarded a medical order or recommendation to assign plaintiff to a lower bunk." (Dkt. No. 32 at 17.)

The court now reviews plaintiff's Second Amended Complaint, filed November 12, 2010.*fn1 (Dkt. No. 41). Plaintiff has identified sixteen defendants by name and "Does 1 through 100."

As this court earlier found in assessing plaintiff's Amended Complaint (Dkt. No. 8 at 2), the allegations of plaintiff's Second Amended Complaint again state cognizable Eighth Amendment claims against Dr. Steevers. However, Dr. Steevers was dismissed from this action by the magistrate judge previously assigned this case (Dkt. No. 25), upon plaintiff's invited request to voluntarily dismiss this defendant (Dkt. Nos. 15, 24), after attempted service of process by the United States Marshal proved unsuccessful (Dkt. No. 14). The court construes plaintiff's inclusion of Dr. Steevers in his Second Amended Complaint, particularly in response to this court's directive that plaintiff "name those individuals responsible for making, implementing and enforcing bunk assignments within his housing unit during the relevant period" (Dkt. No. 32 at 14-15), as a motion for reconsideration of this court's order dismissing Dr. Steevers.

"[W]hen a district court grants voluntary dismissal under Federal Rule of Civil Procedure 41(a), a plaintiff normally has neither the reason nor the right to appeal the dismissal because the plaintiff has received the relief it requested." Chavez v. Illinois State Police, 251 F.3d 612, 654 (7th Cir. 2001) (citation and internal quotations marks omitted). Motions to reconsider are directed to the sound discretion of the court. Frito-Lay of Puerto Rico, Inc. v. Canas, 92 F.R.D. 384, 390 (D.C. Puerto Rico 1981). Local Rule 78-230(k) requires that a party seeking reconsideration of a district court's order must demonstrate "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion; and why the facts or circumstances were not shown at the time of the prior motion." E.D. Cal. L. R. 78-230(k) (3) and (4) (internal numbers omitted). This rule derives from the "law of the case" doctrine, which provides that decisions on legal issues made in a case "should be followed unless there is substantially different evidence . . . new controlling authority, or the prior decision was clearly erroneous and would result in injustice." Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir. 1981).

In his Second Amended Complaint, plaintiff alleges that he was first examined by Dr. Steevers in April 2005, when he allegedly denied plaintiff's request for a lower bunk. (SAC ¶ 29.) Plaintiff alleges that Dr. Steevers again denied plaintiff's request for a lower bunk after plaintiff fell from his upper bunk in January 2006. (Id. ¶¶ 30-31.) Plaintiff alleges that, on April 12, 2006, Dr. Steevers again refused plaintiff's request for a lower bunk. (Id. ¶ 35.) Plaintiff alleges that, in the interim, on March 8, 2006, and again on March 27 and April 12, 2006, Dr. Steevers ordered a "knee sleeve" for plaintiff's right knee injury sustained on March 1, 2006, but plaintiff did not receive the "sleeve" until four months later. (Id. ¶¶ 33-36.) On June 2, 2006, plaintiff sustained a significant fall from his upper bunk, sustaining injuries to his neck, head, back, knee, groin and hip. (Id. ¶¶ 37-38.) Plaintiff alleges that, on June 5, 2006, he again requested a low bunk assignment from Dr. Steevers, but the request was again denied. (Id. ¶ 43.) Plaintiff alleges that it was not until June 30, 2006, that Dr. Steevers issued plaintiff a low bunk chrono. (Id. ¶ 44.) Plaintiff alleges that in August, September, and November 2006, Dr. Steevers was again deliberately indifferent to plaintiff's serious medical needs. (Id. ¶¶ 47-51.)

Based upon plaintiff's allegations in his Second Amended Complaint, Dr. Steevers is a potentially critical party to this action. The undersigned finds that the dismissal of Dr. Steevers, without according plaintiff further opportunity to ascertain his whereabouts for purposes of service of process, so undermines the merits, if any, of plaintiff's action as to be potentially unjust. Plaintiff has continued to investigate and clarify the salient facts underlying his case, and now more fully identifies, in his Second Amended Complaint, the pertinent facts supporting his claims against Dr. Steevers. In fairness to plaintiff, the court will reinstate Dr. Steevers as a defendant in this action, and direct the Attorney General to attempt to identify Dr. Steevers' current address, which may be submitted under seal; if such address is provided, the court will direct the United States Marshal to serve process on Dr. Steevers.*fn2

The court also finds that plaintiff states potentially cognizable claims against physicians Dr. Mehta (the CMF physician who examined plaintiff upon his admission to CMF in February 2005, who allegedly declined to assign plaintiff to a lower bunk despite noting that plaintiff's left elbow had healed improperly, resulting in reduced strength and range of motion (SAC ¶¶ 26-27)); and correctional officers Coleman, Rosales, and Azevedo ("Housing Officers" who allegedly refused to timely honor, until July 13, 2006, plaintiff's "temporary" (handwritten) low bunk chrono issued by Dr. Alchek on June 2, 2006, and Dr. Steevers on June 30, 2006 (SAC ¶¶ 39-45), and the "official" low bunk chrono plaintiff received on July 3, 2006 (id. at ¶ 45).

Finally, the court finds that the Second Amended Complaint states a potentially cognizable claim against the correctional officer who allegedly opposed plaintiff's assignment to a low bunk at an Interdisciplinary Treatment Team meeting convened sometime between January and March 2006, despite advocacy for such placement by plaintiff's mental health care clinicians. (SAC ¶ 32.) The court designates this defendant "Doe 1," and directs the Attorney General to identify this correctional officer, if possible, for purposes of authorizing service of process.

The court finds that plaintiff's Second Amended Complaint fails to state cognizable claims for relief against any other defendants, whether identified by name, or as a "Doe" defendant. There can be no liability under Section 1983 absent an affirmative link between a defendant's alleged misconduct and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

The court also finds that plaintiff's Second Amended Complaint fails to state cognizable claims pursuant to his first three causes of action. The comprehensive record contains no evidence or averment that plaintiff timely filed a state tort claim in support of his first and second causes of action (state law claims for professional negligence and intentional infliction of emotional distress). Plaintiff's third cause of action, a First Amendment retaliation claim, lacks administrative exhaustion. As this court previously found, plaintiff's only relevant exhausted grievance (set forth in Dkt. No. 20 at 9-10), is limited to plaintiff's complaints of inadequate medical care; it contains no allegations, or inferred allegations, of retaliatory conduct.

This action should therefore proceed only on plaintiff's fourth cause of action,*fn3 the alleged deliberate indifference to plaintiff's serious medical needs, pursuant to the Eighth Amendment. The court construes this claim broadly, to include plaintiff's "failure to protect" allegations*fn4 made throughout the Second Amended Complaint.

For the foregoing reasons, IT IS HEREBY ORDERED that: 1. This action shall proceed on plaintiff's Second Amended Complaint filed November 12, 2010 (Dkt. No. 41), on plaintiff's Eighth Amendment claims against defendants Burt, Sabin, ...

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