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Robin Dasenbrock v. Kings County

September 24, 2012

ROBIN DASENBROCK, PLAINTIFF,
v.
KINGS COUNTY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REQUIRING PLAINTIFF EITHER TO FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE ECF No. 1 RESPONSE DUE WITHIN THIRTY DAYS

I. Background

Plaintiff Robin Dasenbrock ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On November 14, 2011, Plaintiff filed his complaint. ECF No. 1.

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 fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 8 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). 2

A complaint must contain "a short and plain statement of the claim showing that the pleader 3 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 4

"[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 5 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 6

U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 7 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 8 allegations are accepted as true, legal conclusions are not. Id. 9

II. Summary of Complaint

Plaintiff was previously incarcerated at the California Substance Abuse Treatment Facility

("SATF") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: Kings County, federal health care receiver J. Clark Kelso, chief of health care service appeals J. Walker, chief medical officer at SATF A. Enenmoh, registered nurse at SATF Ybarra, blonde nurse at SATF Doe No. 1, correctional officer at SATF Perez, general surgeon at SATF Zafar Parvez, and nurse at SATF Page.

Plaintiff alleges the following.*fn1 Plaintiff alleges that Defendants violated his rights under the Eighth Amendment by acting with deliberate indifference to a serious medical need, supervisory liability, and negligence. Plaintiff requests as relief compensatory and punitive damages, declaratory relief, and a preliminary and permanent injunction that Defendants implement a better tracking system so that prisoners receive approved surgeries in a timely manner, and that they write by hand the first two sentences of the Hippocratic Oath.

A.Kings County

Plaintiff contends that Defendant Kings County is liable because it is Kings County's duty to ensure that conditions at SATF's medical are equal to the standard of care required by law. Compl. ¶ 17. Plaintiff fails to state a claim against Defendant Kings County. SATF is operated by CDCR, a state agency, not Kings County.

B.J. Clark Kelso

Plaintiff contends that Defendant J. Clark Kelso is responsible for the medical care of all 3 prisoners at SATF, and acted under color of state law. Compl. ¶ 17. Plaintiff fails to state a claim 4 against Defendant Kelso. Defendant Kelso was appointed as a receiver by United States District 5 Judge Thelton E. Henderson on February 14, 2006.*fn1 In the Order Appointing Receiver ("OAR"), 6 Judge Henderson conferred upon the Receiver judicial immunity to the same extent enjoyed by the 7 Plata court. The OAR provides "[t]he Receiver and his staff shall have the status of officers and 8 agents of this Court, and as such shall be vested with the same immunities as vested with this Court." 9

A Receiver is immune from suit if he was performing tasks within the jurisdiction of the Plata court, in this instance, improvement of the medical delivery component in California prisons. See New Alaska Develop. Corp. v. Guetschow, 869 F.2d 1298, 1302-03 (9th Cir. 1989) (court-appointed receiver shares immunity awarded to the appointing judge). As long as the receiver exercised discretionary judgment in the performance of his duties, he is entitled to immunity. In re Castillo, 297 F.3d 940, 949 (9th Cir. 2002) (quasi-judicial immunity).

Plaintiff alleges no facts which indicate that Defendant Kelso acted in any manner to violate Plaintiff's constitutional rights. Even if Plaintiff did allege such facts, Defendant Kelso is immune from a suit for damages for all alleged conduct requiring discretionary judgment taken in the course of his receivership.

C.Defendant J. Walker

Plaintiff alleges that Defendant J. Walker is the chief of California's health services responsible for administrative review of inmate appeals. Compl. ΒΆ 18. Plaintiff had filed 602 inmate appeal SATF-33-09-12896, which was granted at the first level, and partially granted at the second level. Plaintiff complained that Defendant Enenmoh had authorized surgery in October 2008, but he had not received surgery over two years later. Defendant Walker denied Plaintiff's appeal at the third level on March 8, 2010, even though it had already been granted. Defendant Walker was aware of Plaintiff's chronic rectal bleeding, and that Plaintiff's surgery had been pending for years, ...


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