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Timothy O'keefe v. Jerry Brown

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 28, 2012

TIMOTHY O'KEEFE, PLAINTIFF,
v.
JERRY BROWN, ET AL., DEFENDANTS.

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

ORDER

I. Introduction

Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. On July 5, 2012, defendants Brown and Cate filed a motion to dismiss this action, alleging that plaintiff failed to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). On November 2, 2012, plaintiff filed an opposition; on September 7, 2012, defendants Brown and Cate filed a reply. On October 23, 2012, defendant Higgins filed a motion to join in the motion to dismiss; on November 2, 2012, plaintiff filed an opposition to defendant Higgins' motion. As set forth more fully below, defendants' motions to dismiss are granted, but plaintiff is granted leave to file a third amended complaint.

II. Plaintiff's Allegations

In his original complaint, filed October 5, 2011, plaintiff alleged that he was not

receiving adequate and appropriate psychiatric treatment in a safe and therapeutic environment for his axis 1 diagnosis of exhibitionism, voyeurism, paraphilia, and other sexual problems. (Dkt. No. 1 at 1.) Plaintiff stated that he was about to be transferred to R.J. Donovan in San Diego, which has no adequate psychiatric treatment for plaintiff. (Dkt. No. 1 at 3.)

In his amended complaint, filed November 7, 2011, plaintiff alleged that he was not receiving adequate or appropriate psychiatric treatment in a safe and therapeutic environment for his mental health diagnoses of exhibitionism, voyeurism, and paraphilia. (Dkt. No. 5 at 2.) Plaintiff alleged that defendants were deliberately indifferent to plaintiff's serious medical needs.

In his second amended complaint, filed January 27, 2012, plaintiff claims his "issue is with the entire prison system in California." (Dkt. No. 21 at 1.) Plaintiff alleges that his Eighth and Fourteenth Amendment rights are being violated because plaintiff "is not receiving adequate and appropriate psychiatric care for his mental health diagnosis in a safe and therapeutic environment." (Id. at 4.) Plaintiff claims he is suffering "much mental and physical pain and anguish" and that he "has chronic suicidal thinking and feels hopeless and helpless." (Id.) Plaintiff recounts his long history of mental disorders, as well as the legal consequences for his actions resulting from his "deep-rooted psychosexual problems," including exhibitionism. Plaintiff provided copies of 2001 letters from District Attorney Kerry Wells and defense attorney William Apgar who both recommended that plaintiff receive sexual offender treatment at Atascadero or CMC East, California Men's Colony. (Dkt. No. 21 at 15, 17.) Plaintiff provided a copy of the 2001 report of licensed psychologist Kris Mohandie, Ph.D., who recommended, inter alia , that plaintiff receive adequate treatment which addresses plaintiff's affective disorder (depression), as well as his sexual offense related disorders; intensive psychological treatment to address his longstanding, recurrent, severe depression and serious suicidal ideation, including a psychiatric medication evaluation; and mandatory involvement in psychological treatment for his voyeurism and exhibitionism. (Dkt. No. 21 at 42.)

Plaintiff claims he has raised this issue of inadequate psychiatric treatment for his mental health diagnoses through inmate appeals, as well as through correspondence with various state officials, including the named defendants. Plaintiff alleges that in 2005, the Board of Parole Hearings recommended that plaintiff get psychiatric treatment for his criminal sexual proclivities. (Dkt. No. 21 at 8, 72.) Plaintiff provided a copy of an October 5, 2011 letter from Jay Atkinson, PRA Coordinator, Offender Information Services Branch, Office of Research, California Department of Corrections and Rehabilitation ("CDCR"), who stated that "[a]t this time there is no treatment for sex offenders offered in state prison." (Dkt. No. 21 at 45.)

Plaintiff seeks, inter alia , a court order requiring defendants to provide adequate and appropriate mental health care in a safe and therapeutic environment that is consistent with the plaintiff's mental health diagnosis of exhibitionism, voyeurism, and paraphilia. (Dkt. No. 21 at 12.) In the alternative, if such treatment is not available through the CDCR, plaintiff seeks an order requiring defendants to transfer plaintiff to the Coalinga State Mental Hospital for treatment. (Dkt. No. 21 at 13.)

III. The Parties' Arguments

A. Motion to Dismiss

Defendants move to dismiss plaintiff's claims on multiple grounds. First, defendants contend plaintiff fails to state a cognizable due process claim because the Ninth Circuit has held that an inmate serving a criminal sentence does not possess a constitutionally protected liberty interest in sex offender treatment. Balla v. Idaho State Bd. of Corrections, 869 F.2d 461 (9th Cir. 1989).

Second, defendants contend that plaintiff fails to state a cognizable Eighth Amendment claim based on plaintiff's claim that he is denied sex offender treatment because a sex offender may or may not suffer from a mental disorder. In addition, defendants contend that sex offender treatment is a rehabilitative treatment used to ready inmates for return to society, and at least one court has held that denial of sex offender treatment to sex offenders does not qualify as deliberate indifference, citing Bell v. Holder, 2011 WL 7472930, at *8 (M.D. Ala. Nov. 14, 2011) (prisoners do not have a general constitutional right to participate in a specific rehabilitation program, and the failure to provide rehabilitation does not constitute cruel and unusual punishment). In connection with plaintiff's claim that defendants failed to provide him adequate treatment for his diagnoses of exhibitionism, voyeurism, and paraphilia, defendants contend that plaintiff failed to allege sufficient facts to support this claim. Specifically, plaintiff failed to allege specific facts as to what particular treatment, medication, or evaluation was allegedly denied, nor does he identify the defendant who allegedly denied such. (Dkt. No. 46-1 at 8.) Defendants argue that plaintiff's claim that he received no mental health treatment is contradicted by an exhibit in which plaintiff admits he received some psychiatric treatment (dkt. no. 46-1 at 9), and that another exhibit reflects plaintiff was recently treated at Salinas Valley Psychiatric Program -- Intermediate Care Facility. (Id.)

Third, defendants argue that plaintiff's claims for injunctive relief are barred in light of Coleman v. Schwarzenegger, No. 2:90-cv-0520 LKK JFM (E.D. Cal.), a class action suit concerning mental health care in California state prisons. Defendants contend that because exhibitionism is a subject matter under the jurisdiction of Coleman, plaintiff's claim for equitable relief should be dismissed for failure to state a claim.

Finally, defendants contend that plaintiff's settlement of claims in O'Keefe v. Gomez, et al., 2:92-cv-0104 JFM, bar litigation of those claims in this action according to the doctrine of res judicata . Defendants point to the language of the Stipulated Settlement and Release, which states the parties' intent to settle and waive all future claims on the issue:

Plaintiff does for himself, his heirs, executors, administrators, attorneys, representatives, agents and assigns, release and expressly waive the right to pursue any and all claims, demands, liabilities, actions, suits, causes of action, obligations, controversies, costs, expenses, damages, losses and judgments of every kind or character in law, equity or otherwise, including attorney's fees and costs, against the defendants, named and unnamed, and the State of California, its agencies and departments, officers, employees, agents or assigns which plaintiff has based upon or by reason of, in whole or in part, any act, omission to act, transaction, practice, conduct, matter, cause or thing of any kind or charge directly or indirectly arising out of or in anyway connected with the alleged events which are the subject of the action.

(Dkt. No. 47-3 at 4.)

B. Plaintiff's Opposition

In opposition, plaintiff clarifies that he is not seeking "sex offender" treatment, but rather argues that he is not receiving adequate and appropriate psychiatric treatment in a safe and therapeutic environment for his Axis 1 diagnosis of exhibitionism, voyeurism, and paraphilia, because no such treatment exists. (Dkt. No. 58-1 at 1, 8.) Plaintiff asserts that defendants are violating his Eighth Amendment rights because the lack of treatment constitutes deliberate indifference to plaintiff's serious medical needs. Plaintiff concedes that he has received some psychiatric treatment, but contends it is not "close to the psychiatric treatment that Kris Monhandle recommended," or treatment that "effectively addresses plaintiff's mental health diagnosis." (Dkt. No. 58-1 at 9.) Plaintiff relies on his Exhibit A for the proposition that there is no treatment for exhibitionism, voyeurism and paraphilia in the CDCR. (Dkt. No. 58-1 at 13.) Exhibit A is PRA Coordinator Atkinson's October 5, 2011 letter stating that "there is no treatment for sex offenders offered in state prisons." (Dkt. No. 58-1 at 16.)

Plaintiff claims that he sued the named defendants because "this issue encompasses all the prisons within the [CDCR]." (Dkt. No. 58-1 at 7.) Plaintiff alleges that defendant Cate is responsible for all the prisons within the prison system, and that defendant Brown, as Governor, is responsible for what defendant Cate does. (Id.)

Plaintiff contends defendants violated his due process rights because he has a legitimate right to treatment for his criminal sexual proclivities, relying on Beebe v. Heil, 333 F. Supp.2d 1011, 1015 (D. Col. 2004). Plaintiff also contends his due process rights are violated by the failure to provide such treatment, because the Board of Parole Hearings recommended that plaintiff receive psychiatric treatment for his exhibitionism, voyeurism, and paraphilia, and plaintiff will be unable to obtain parole without this treatment.

Plaintiff claims he suffers from a serious medical need by virtue of his diagnosis of exhibitionism, voyeurism, and paraphilia,, and the failure to provide mental health treatment constitutes deliberate indifference in violation of the Eighth Amendment.

Plaintiff argues that his claim for equitable relief is not barred by Coleman, and that Coleman counsel advised plaintiff that under Coleman, the CDCR is not mandated to treat prisoners with sexual disorders. (Dkt. No. 58-1 at 2.) Plaintiff concedes "that there are provisions under Coleman for prisoners who have a diagnosis of exhibitionism," but plaintiff contends that these provisions do not cover plaintiff's needs. (Dkt. No. 58-1 at 10.)

In connection with defendants' res judicata arguments concerning the prior settlement, plaintiff contends that while a few facts are the same, the instant case stems from a different set of facts, and that because plaintiff did not name the Governor as a defendant in the case settled in 1994, there is no identity or privity of parties.

C. Defendants' Reply

In reply, defendants note that plaintiff failed to allege facts demonstrating that a violation of federal law occurred, or that a government entity was the moving force behind the alleged violation. Defendants contend that plaintiff failed to allege sufficient facts demonstrating that plaintiff was denied a particular treatment, therapy, evaluation or level of care within the mental health system, or to allege facts demonstrating a culpable state of mind on the part of defendants, rather than a mere difference of opinion concerning mental health treatment. To the extent that plaintiff seeks to sue defendants in their official capacities, defendants argue that plaintiff failed to identify a policy that was the moving force behind the alleged violation. In the second amended complaint, plaintiff alleged that there was a lack of sex offender treatment, which plaintiff now states he is not challenging. Although plaintiff alleged he was personally not receiving adequate treatment for exhibitionism, voyeurism, and paraphilia, defendants argue that plaintiff did not allege that the CDCR does not offer any treatment for exhibitionism, voyeurism, and paraphilia. (Dkt. No. 61 at 4.) Defendants also contend that plaintiff admits that some treatment for exhibitionism is available through the security housing unit where there is psychiatric treatment for exhibitionism, and that plaintiff is part of the mental health delivery system, at the Enhanced Outpatient Program level of care (dkt. no. 58-1 at 4), and that plaintiff has an assigned psychologist (id. at 6). (Dkt. No. 61 at 4.)

Defendants argue that plaintiff's factual allegations in the second amended complaint are unclear as to whether plaintiff alleges a CDCR policy caused his alleged inadequate treatment, or whether the alleged inadequate treatment was caused by CDCR employees who are not following CDCR policy. (Dkt. No. 61 at 5.) Defendants further contend that it is unclear whether plaintiff is challenging a particular CDCR or State of California policy.

In addition, defendants contend that plaintiff failed to allege sufficient facts to demonstrate that defendants personally violated plaintiff's Eighth Amendment rights, arguing that there is no link or connection alleged between each defendant and the lack of treatment, and that supervisory liability under a theory of respondeat superior is insufficient.

With regard to plaintiff's due process claim, defendants argue that plaintiff's reliance on Beebe is unavailing because Beebe was sentenced under a Colorado sentencing scheme for sex offenders that gave him an indeterminate sentence and required sex offender treatment, but plaintiff is serving a sentence for assault with a deadly weapon, and California does not have a similar sentencing scheme for sex offenders. In addition, the Ninth Circuit has found that an inmate serving a criminal sentence does not possess a constitutionally protected liberty interest in sex offender treatment. Balla, 869 F.2d at 468-70.

Defendants reiterate their argument that plaintiff's injunctive relief claim is part of the Coleman class litigation. Defendants argue that plaintiff admits he is diagnosed with exhibitionism which defendants contend makes plaintiff a part of the Coleman class. Coleman v. Schwarzenegger, 2009 WL 2430820 at *15 (E.D. Cal. Aug. 4, 2009). Defendants contend that to the extent plaintiff requests that the CDCR change its policies regarding the treatment of inmates diagnosed with exhibitionism, his request falls squarely within the area covered by the Coleman class action.

In connection with the settlement of plaintiff's prior lawsuit, defendants dispute plaintiff's characterization of his claims as stemming from "a whole different set of facts." (Dkt. No. 61 at 7.) Defendants contend that plaintiff alleges no specific instance since 1994 where plaintiff was denied adequate mental health care. Rather, plaintiff alleges vague allegations that the CDCR is not providing plaintiff with adequate mental health treatment. Defendants argue that in his prior case, plaintiff argued the same vague allegations, and thus plaintiff should not be permitted to re-litigate those claims in this action.

IV. Legal Standard for Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for 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). Still, to survive dismissal for failure to state a claim, a pro se complaint 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). In other words, "[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 essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

V. Analysis

1. Due Process Claims

Defendants are correct that the Ninth Circuit has found that prisoners have no liberty interest in sex offender treatment; thus, plaintiff cannot state a cognizable due process claim based on the denial of sex offender treatment. Balla, 869 F.2d 470; Maimon v. Rea, 127 Fed. Appx. 295 (9th Cir. 2005) (prisoner had no due process liberty interest in sex offender treatment). These Ninth Circuit rulings are binding on this court; plaintiff's reliance on Beebe is unavailing. Thus, plaintiff should not renew this due process claim in any third amended complaint. *fn1

2. Coleman

Coleman v. Schwarzenegger, No. 2:90-cv-0520 LKK JFM (E.D. Cal.), is a class action suit concerning mental health care in California state prisons. However, this court does not read the application of Coleman as broadly as defendants. See Jaspar v. Khoury, 2011 WL 2457904, at *3-5 (E.D. Cal. June 16, 2011) (appended). Rather, this court finds that Coleman more narrowly precludes only those equitable claims that seek broad, systemic changes targeted by the Coleman class action.

In the second amended complaint, plaintiff states that "this issue is with the entire prison system in California." (Dkt. No. 21 at 1.) In his opposition, plaintiff also argues that he named the defendants because this issue encompasses all the prisons within the CDCR. (Dkt. No. 58-1 at 7.) Plaintiff also argues that this issue "affects some 24,000 other prisoners and the general public safety." (Dkt. No. 67 at 3.) *fn2 Thus, to the extent plaintiff is alleging systemic challenges to the provision of mental health care in prison, such claims are barred by Coleman.

It also appears plaintiff now challenges the provision of mental health care for exhibitionism, voyeurism, and paraphilia. Defendants argue that because exhibitionism is part of the Coleman class action, plaintiff is required to pursue this claim through the Coleman class. Exhibitionism appears to be part of the Coleman class action. Coleman v. Schwarzenegger, 2009 WL 2430820 at *15 (E.D. Cal. Aug. 4, 2009). Thus, to the extent plaintiff requests that the CDCR change its policies regarding the treatment of inmates diagnosed with exhibitionism, such a request falls squarely within the Coleman class action, and plaintiff may not pursue an individual claim on that basis. However, as set forth above, to the extent plaintiff intends to amend his complaint to challenge the provision of mental health care for himself only, even in connection with his exhibitionism, such a claim is not barred by Coleman.

3. Eighth Amendment Claims

The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978) ("Congress did not intend § 1983 liability to attach where . . . causation [is] absent."); Rizzo v. Goode, 423 U.S. 362 (1976) (no affirmative link between the incidents of police misconduct and the adoption of any plan or policy demonstrating their authorization or approval of such misconduct). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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) (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979) (no liability where there is no evidence of personal participation). 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) (complaint devoid of specific factual allegations of personal participation is insufficient).

Plaintiff's claim involves his mental health care and therefore falls within the purview of the Eighth Amendment. In order to state a claim for relief under the Eighth Amendment for inadequate prison mental health or medical care, plaintiff must allege "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976).) The two prong test for deliberate indifference requires the plaintiff to show (1) "'a serious medical need' by demonstrating that 'failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992).) Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d at 1060.) In order to state a claim for violation of the Eighth Amendment, a plaintiff must allege sufficient facts to support a claim that the named defendants "[knew] of and disregard[ed] an excessive risk to [plaintiff's] health. . . ." Farmer v. Brennan, 511 U.S. 825, 837 (1994).

In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner's civil rights have been abridged, "the indifference to his medical needs must be substantial. Mere 'indifference,' 'negligence,' or 'medical malpractice' will not support this cause of action." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06.) A complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). A difference of opinion between medical professionals concerning the appropriate course of treatment generally does not amount to deliberate indifference to serious medical needs. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Also, "a difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a[§ ]1983 claim." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). To establish that such a difference of opinion amounted to deliberate indifference, the prisoner "must show that the course of treatment the doctors chose was medically unacceptable under the circumstances" and "that they chose this course in conscious disregard of an excessive risk to [the prisoner's] health." See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); see also Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012) (doctor's awareness of need for treatment followed by his unnecessary delay in implementing the prescribed treatment sufficient to plead deliberate indifference); see also Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012) (decision of non-treating, non-specialist physicians to repeatedly deny recommended surgical treatment may be medically unacceptable under all the circumstances.)

In his oppositions, plaintiff concedes he named defendants because his claim encompasses all of the prisons within the CDCR; he states that defendant Cate is responsible for all the prisons, and defendant Brown is responsible for defendant Cate's actions. (Dkt. No. 58-1 at 7.) Arguably, plaintiff named defendant Higgins due to her role as chief psychiatrist. Because plaintiff's systemic claims concerning mental health care in California prisons must be brought through the Coleman class action, defendants' motion to dismiss is granted. However, plaintiff is granted leave to file a third amended complaint to name as defendants those persons responsible for the alleged denial of plaintiff's personal mental health care.

In addition, in any third amended complaint, plaintiff must allege facts demonstrating each defendant's personal involvement, as well as facts demonstrating that each defendant was deliberately indifferent to plaintiff's serious mental health needs. The exhibits provided by plaintiff demonstrate that he is in the EOP level of mental health care, and has received psychiatric treatment as recently as 2011. Plaintiff provided a copy of a September 15, 2011 memorandum from a Correctional Counselor at Salinas Valley State Prison who stated that plaintiff was endorsed to Salinas Valley State Prison for . . . psychiatric treatment . . . . [Plaintiff was] originally transferred to RJD level IV EOP SNY as a level III override due to the administrative determinant for your psychological condition as an emergency endorsement from the Central Training Facility (CTF) base[d] on your need for EOP level of care at the time.

(Dkt. No. 21 at 51.) Moreover, despite plaintiff's reliance on Mr. Atkinson's statement, plaintiff provided a copy of a memo from Chief Deputy Warden Solis at Salinas Valley State Prison, dated September 2, 2011, which states that the CDCR does offer programs for sex offenders, and that plaintiff should "put in a request to see a mental health clinician." (Dkt. No. 21 at 52.) Plaintiff concedes that he has received some psychiatric treatment, but contends it is not "close to the psychiatric treatment that Kris Monhandle recommended," or treatment that "effectively addresses plaintiff's mental health diagnosis." *fn3 (Dkt. No. 58-1 at 9.) In any third amended complaint, plaintiff must make clear the specific treatment, or lack of treatment, he alleges demonstrates deliberate indifference to plaintiff's serious mental health needs. For example, if plaintiff claims that his transfer to R.J. Donovan deprived him of the psychiatric treatment he was receiving at Salinas Valley State Prison, and such transfer was deliberately indifferent to his serious mental health needs, plaintiff should so claim in any third amended complaint.

Just as plaintiff alleged specific facts concerning his mental health care in his prior lawsuit, Case No. 02-cv-0104, plaintiff must allege specific facts demonstrating how each named defendants are deliberately indifferent to plaintiff's serious mental health needs.

For all of the above reasons, plaintiff's second amended complaint is dismissed with leave to amend.

4. Plaintiff's Prior Settlement

Defendants' request for judicial notice of documents filed in O'Keefe v. Gomez, et al., 2:92-cv-0104 (E.D. Cal.), is granted. (Dkt. No. 47.)

The doctrine of res judicata protects "litigants from the burden of relitigating an identical issue" and promotes "judicial economy by preventing needless litigation." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). The court bars a claim where there is an identity of claims, a final judgment on the merits, and privity between parties. See Mpoyo v. Litton Electro--Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005). An identity of claims exists if the two actions arise out of the same transactional nucleus of facts. Burlington N. Santa Fe R.R. v. Assiniboine & Sioux Tribes, 323 F.3d 767, 770 (9th Cir. 2003). Res judicata "bar [s] all grounds for recovery which could have been asserted, whether they were or not, in a prior suit between the same parties . . . on the same cause of action." Constantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir. 1982) (quoting Ross v. IBEW, 634 F.2d 453, 457 (9th Cir. 1980)).

Res judicata is generally jurisdictional; therefore the motion to dismiss is properly made under Federal Rule of Civil Procedure 12(b)(1). See Lande v. Billings Hospitality, Inc., 2008 WL 4180002, *1 (D. Mont. 2008).

In O'Keefe v. Gomez, 2:92-cv-0104, plaintiff sued the Director of the CDCR, the Assistant Deputy Director for Medical Services, the Acting Warden of the California Mens Colony - East Prison ("CMC-East"), the Chief Medical Officer of CMC-East, the Chief Psychiatrist of CMC-East, the Classification and Parole Representative of CMC-East, two staff psychologists at CMC-East, a correctional lieutenant and a correctional officer at the CDCR, each in their individual and official capacities. (Dkt. No. 47-1 at 2.) Plaintiff recounted his criminal and history of abnormal sexual behavior as he did in the instant action. However, in addition, plaintiff alleged specific factual allegations concerning his mental health treatment in various prisons and Atascadero State Hospital from 1988 to 1992. (Dkt. No. 47-1 at 7-21.)

In Case No. 2:92-cv-0104, plaintiff pursued the following legal claims: (1) the alleged beatings plaintiff suffered violated his Eighth and Fourteenth Amendment rights; (2) that plaintiff's transfer from CMC-East back to New Folsom allegedly denied plaintiff psychotherapy and psychiatric care in violation of the Eighth and Fourteenth Amendments; (3) defendants allegedly ignored plaintiff's past psychiatric illness and treatments, and the expert medical opinions of prior doctors who recommended treatment in violation of the Eighth Amendment; and (4) that defendants allegedly punished plaintiff for making false allegations against staff, denying plaintiff's right to free speech under the First Amendment. (Dkt. No. 47-1 at 21.) Plaintiff sought injunctive relief requiring defendants to (a) transfer plaintiff back to CMC-East;

(b) provide plaintiff with adequate and appropriate psychiatric treatment, including psychotherapy at CMC-East; (c) retain plaintiff at CMC-East until plaintiff is released from prison; (d) give plaintiff the drug Depo-Provera as part of plaintiff's psychiatric treatment; (e) provide plaintiff with a single cell; (f) prohibit defendants from harassing or retaliating against plaintiff for bringing the legal action; (g) provide psychotherapy at New Folsom Prison until plaintiff is transferred back to CMC-East; and (h) bring in a non-CDCR psychologist experienced in working with sex offenders to evaluate plaintiff's need for treatment. (Dkt. No. 47-1 at 22.) Plaintiff also sought compensatory and punitive damages. (Id.)

On June 17, 1994, plaintiff's civil action 2:92-cv-0104 JFM, was settled; plaintiff was to be transferred to the California Medical Facility for psychiatric evaluation. (Dkt. No. 88.) Plaintiff signed the waiver set forth above. (Dkt. No. 47-3 at 4.)

Plaintiff paroled in 1995, and again in 1998, but was reincarcerated in 2000 based on a new conviction.

In the second amended complaint, plaintiff provided no specific factual allegations as to his current psychiatric treatment at R.J. Donovan Correctional Facility where plaintiff is presently housed, and sought, inter alia , mental health care for his exhibitionism, voyeurism, and paraphilia. Although there may be some overlap with plaintiff's systemic claims as to his mental health care, which are barred under Coleman, the prior case contained detailed allegations concerning plaintiff's treatment at CMC-East which are not reiterated in the instant second amended complaint or plaintiff's oppositions. Also, it does not appear, at least from the complaint, that plaintiff specifically sought mental health care for his exhibitionism, voyeurism, and paraphilia in Case No. 92-cv-0104. Thus, defendants' motion to dismiss plaintiff's claims under the doctrine of res judicata is denied without prejudice.

5. Leave to Amend

As noted above, plaintiff's second amended complaint is dismissed with leave to amend. If plaintiff chooses to file a third amended complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the third amended complaint must allege in specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions 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). Furthermore, vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

A district court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, "[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) (citing Bell Atlantic Corp., 550 U.S. at 555). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp., 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. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Ashcroft, 129 S. Ct. at 1949 (citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id. at 1950.

In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's third amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This requirement is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a third amended complaint, the original pleading no longer serves any function in the case. Therefore, in a third amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

VI. Conclusion

Accordingly, IT IS HEREBY ORDERED that:

1. Defendants' request for judicial notice (dkt. no. 47) is granted;

2. Defendants' July 5, 2012 motion to dismiss (dkt. no. 46) is granted;

3. Defendant Higgins' October 23, 2012 motion to dismiss (dkt. no. 66) is granted;

4. Plaintiff's second amended complaint (dkt. no. 21) is dismissed;

5. Within thirty days from the date of this order, plaintiff may complete the attached Notice of Amendment and submit the following documents to the court:

a. The completed Notice of Amendment; and

b. An original and one copy of the Third Amended Complaint. Plaintiff's third amended complaint shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the third amended complaint must bear the docket number assigned this case and must be labeled "Third Amended Complaint"; failure to file a third amended complaint in accordance with this order will result in the dismissal of this action.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

No. 2:11-cv-2659 KJM KJN P

TIMOTHY O'KEEFE, Plaintiff, v. JERRY BROWN, et al., Defendants.

NOTICE OF AMENDMENT

Plaintiff hereby submits the following document in compliance with the court's order filed

______________ Third Amended Complaint DATED:

Plaintiff

Only the Westlaw citation is currently available. LEGAL STANDARDS

United States District Court,

Rule 12(b) (6) of the Federal Rules of Civil E.D. California. Procedures provides for motions to dismiss for "failure to Matthew Lee JASPAR, Plaintiff, state a claim upon which relief can be granted." v. Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss KHOURY, et al., Defendants. pursuant to Federal Rule of Civil Procedure 12(b)(6), the No. 2:06--cv--1177 GEB KJN P. court must accept as true the allegations of the complaint in question, Erickson v. Pardus, June 16, 2011. 551 U.S. 89 (2007), and construe the pleading in the Matthew Lee Jaspar, Vacaville, CA, pro se. light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969);

Marta C. Barlow, Attorney General's Office of the State of Meek v. County of Riverside, 183 F.3d 962, 965 (9th California, Sacramento, CA, for Defendants. Cir.1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked FINDINGS AND RECOMMENDATIONS assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell KENDALL J. NEWMAN, United States Magistrate Atlantic Corp. v. Twombly, 550 U.S. 544, 555--57, 127 Judge. S.Ct. 1955, 167 L.Ed.2d 929 (2007). In other words,

*1 Plaintiff is a state prisoner at the California "[t]hreadbare recitals of the elements of a cause of action, Medical Facility ("CMF"), proceeding without counsel in supported by mere conclusory statements do not suffice." this civil rights action filed pursuant to 42 U.S.C. § 1983. Ashcroft v. Iqbal, ------ U.S. --------, --------, 129 S.Ct. 1937, This action proceeds on plaintiff's First Amended 1949, 173 L.Ed.2d 868 (2009). Furthermore, a claim upon Complaint, filed September 15, 2010 (Dkt. No. 64), based which the court can grant relief must have facial on plaintiff's allegations that he was denied adequate plausibility. Twombly, 550 U.S. at 570. "A claim has treatment for his acquired Human Immunodeficiency facial plausibility when the plaintiff pleads factual content Virus ("HIV"). Presently pending is defendants' motion to that allows the court to draw the reasonable inference that dismiss plaintiff's request for injunctive relief, pursuant to the defendant is liable for the misconduct alleged." Iqbal, defendants' contention that such relief is subsumed by the 129 S.Ct. at 1949. Attachments to a complaint are June 12, 2002 Stipulation for Injunctive Relief reached in considered to be part of the complaint for purposes of a the class action, Plata v. Schwarzenegger, Case No. motion to dismiss for failure to state a claim. Hal Roach C--01--1351 THE (N.D.Cal.2001). On the same basis, Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. defendants seek dismissal of defendant Matthew Cate, 19 (9th Cir.1990).

Secretary of the California Department of Corrections and Rehabilitation ("CDCR"). *2 A motion to dismiss for failure to state a claim

Plaintiff has not filed an opposition to defendants' should not be granted unless it appears beyond doubt that motion. After the time for filing his opposition had passed, the plaintiff can prove no set of facts in support of his the court directed plaintiff to file such opposition within claims which would entitle him to relief. Hishon v. King thirty days, and informed him that failure to do so would & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d be deemed a statement of non-opposition to the motion, 59 (1984). In general, pro se pleadings are held to a less and may result in the dismissal of this action for failure to stringent standard than those drafted by lawyers. Haines v. comply with a court order. (Dkt. No. 76.) Plaintiff did not Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 respond to the court's order.FN1 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, FN1. The court has verified through the "Inmate 1027 n. 1 (9th Cir.1985) (en banc). However, the court's Locator" website operated by the California liberal interpretation of a pro se complaint may not supply Department of Corrections and Rehabilitation essential elements of the claim that were not pled. Ivey v. that plaintiff is still incarcerated at the California Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Medical Facility. Cir.1982).

Because defendants' motion seeks only a partial DISCUSSION dismissal of plaintiff's case, the court addresses the merits of the motion, and declines to recommend dismissal of the In the operative First Amended Complaint ("FAC" or entire action at this time. Rather, the court recommends "complaint") (Dkt. No. 64), plaintiff contends that, upon that defendants' motion be granted in part, and that this his transfer from California State Prison--Corcoran to case proceed on a narrowed basis. CMF, defendants improperly discontinued the testosterone Not Reported in F.Supp.2d, 2011 WL 2457904 (E.D.Cal.) (Cite as: 2011 WL 2457904 (E.D.Cal.))

treatments plaintiff had been receiving to combat Schwarzenegger, 2005 WL 2932253 (N.D.Cal.2005) metabolic dysfunction symptoms associated with his HIV (Appointment of Receiver). Plata is a class action of and Highly Active Antiretroviral Therapy ("HAART"). inmates in California state prisons with serious medical This court found that the complaint may state a potentially needs. (Stip. at ¶ 1.) Plaintiff, a CMF inmate with serious cognizable Eighth Amendment claim for deliberate medical needs, is necessarily a member of the Plata class. indifference to plaintiff's serious medical needs, against (Id. at ¶ 5.) The Stipulation requires that all members of defendants CMF physicians Dr. U. Pai, Dr. Nicholas the class receive constitutionally adequate medical care Aguilera, and Dr. Joseph A. Bick, and, less clearly, but consistent with applicable policies and procedures in "for present purposes," against the CDCR Secretary, based effect as of February 2002. (Id. at ¶ 4.) Any disputes as to on plaintiff's general claims for injunctive relief. (See Dkt. the adequacy of these policies and procedures are to be No. 66 at 2--3, noting plaintiff's general challenge to an resolved pursuant to the dispute resolution procedures set "official state policy" or "an arbitrary policy, pattern, forth in the Stipulation. (Id. at ¶¶ 26--28.) Disputes relative practice or custom" that may underlie the decisions of the to the treatment of individual prisoners are to be pursued individual defendants to discontinue plaintiff's treatments, through the administrative grievance process, and then as set forth in the FAC, at 8.) The court further noted (Dkt. through private mediation with defendants. (Id. at ¶ 30.) No. 66 at 4): These procedural requirements may be suspended only for

Curiously, plaintiff does not expressly seek injunctive inmates "requiring urgent medical care." (Id. at ¶ 7.) relief to obtain reinstatement of his testosterone treatments. The court is unable to determine, based on FN2. Judicial notice may be taken of court the allegations of the FAC, whether this is because records. Valerio v. Boise Cascade Corp., 80 plaintiff is now receiving such treatments, or because he F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd, 645 has determined that such treatments are no longer F.2d 699 (9th Cir.), cert. denied, 454 U.S. 1126, warranted. Nonetheless, for present purposes and in the 102 S.Ct. 976, 71 L.Ed.2d 113 (1981). interests of expediting this four-year-old case, the court will construe plaintiff's request for injunctive relief, as The Ninth Circuit has held that a plaintiff who is a well as his general request for "[s]uch other relief as member of a class action for equitable relief from prison [the] court deems just, equitable and fair" (FAC, at 11), conditions may not maintain a separate, individual suit for to include, if applicable, a request for reinstatement of relief that is also sought by the class, but may pursue plaintiff's testosterone treatments. equitable relief that "exceeds," "goes beyond" or is "not covered" by the class action. Crawford v. Bell, 599 F.2d After defendants filed an answer to the complaint, 890 (9th Cir.1979) (reversing district court's dismissal of plaintiff filed a "response" in which he stated that he was plaintiff's claims for relief that were not included in a class indeed "ask[ing] this court to order reinstatement of the action challenging overcrowding); accord, McNeil v. previously prescribed treatment." (Dkt. No. 75 at 3.) Guthrie, 945 F.2d 1163, 1166 n. 4 (10th Cir.1991) ("class members may bring individual actions for equitable relief Defendants contend that plaintiff may not pursue any when their claims are not being litigated within the injunctive relief in this action, asserting that plaintiff's boundaries of the class action"); Rivera v. Bowe, 664 general challenge to CMF policies, as well as his specific F.Supp. 708, 710 (S.D.N.Y.1987) ("it would be improper request to obtain the subject treatment, are subsumed by to foreclose the parties from pursuing separate claims the Plata class action. Pursuant to this argument, where such claims are not encompassed and litigable defendants also seek dismissal of the CDCR Secretary. within the original action," citing Crawford ). In contrast, individual damages claims may clearly be pursued. "[T]he *3 The court takes judicial notice FN2 of the Plata general rule is that a class action suit seeking only "Stipulation for Injunctive Relief." (Dkt. No. 73--1 declaratory and injunctive relief does not bar subsequent ("Stipulation" or "Stip.")); see also Plata v. individual damage claims by class members, even if based on the same events." Hiser v. Franklin, 94 F.3d 1287, Meyer, supra, 2008 WL 2223253); Jackson v. Lee, 2009 1291 (9th Cir.1996). WL 3047012 (N.D.Cal.2009) (dismissing plaintiff's claims for equitable relief regarding the quality of his personal However, the Ninth Circuit has not addressed medical care because subsumed by Plata and another class whether, or to what extent, Plata precludes a California action). inmate from pursuing an independent lawsuit for individual injunctive medical relief, and the distinction Other cases, like Burnett, have more narrowly drawn in Crawford has been cited only infrequently. This precluded only those equitable claims that seek broad, court has found only one published district court decision systemic changes targeted by the Plata class action. See addressing the matter. In Burnett v. Dugan, 618 F.Supp.2d e.g. Bovarie v. Schwarzenegger, 2010 WL 1199554, *7 1232 (S.D.Cal.2009), the court granted preliminary (S.D.Cal.2010) (dismissing plaintiff's claims for injunctive injunctive relief to the plaintiff, who sought a court order relief seeking "system-wide, structural reform ... [t]hat is requiring defendants to adhere to "chronos" setting forth precisely the objective of the plaintiffs in Plata[,]" noting plaintiff's medically-indicated housing needs. The district that the result may be different if plaintiff were seeking court noted that plaintiff was "not seeking relief on behalf "injunctive relief that is specific to his medical needs or of all the other inmates in the CDCR," nor seeking "broad the circumstances of his incarceration"); Chess v. Dovey, based reform of the CDCR's medical practices which is the 2009 WL 2151998, *6 (E.D.Cal.2009) (dismissing subject of the Plata litigation," but rather sought relief that plaintiff's claims for "broad injunctive relief requiring was "quite narrow and specific to Plaintiff." Burnett, 618 implementation of a pain management program for all F.Supp.2d at 1237. The court rejected defendants' chronic care patients, the building of a diet kitchen, argument that plaintiff was "automatically precluded from implementation of a physical therapy program and various seeking injunctive relief for his medical related issues other system-wide changes in the medical care provided in unless he first seeks relief as a member of the Plata class," California prisons") (internal quotations omitted);

Martinez v. California, 2008 WL 782861, *3 noting that defendants "cite to no authority that (E.D.Cal.2008) (denying defendants' motion to dismiss requires any plaintiff follow the Plata procedures when plaintiff's equitable claims based on plaintiff's they are attempting to enforce a specific medical treatment representation that he was "not seeking injunctive relief as or doctor's order related only to that individual plaintiff." to issues that were litigated in Plata" ); Tillis v. Id. The court also relied on the exception set forth in the Lamarque, 2006 WL 644876, *9 (N.D.Cal.2006) (finding Plata stipulation authorizing the suspension of its that plaintiff's request for a transfer to another institution procedural requirements for inmates "requiring urgent was not barred by Plata because "[p]laintiff is seeking medical care." Id. relief solely on his own behalf"); Burnett v. Faecher, 2009

WL 2007118 (C.D.Cal.2009) (rejecting defendants' *4 Although some courts have applied reasoning "apparent" argument "that no inmate in the entire state can similar to that articulated in Burnett, to permit Plata bring any Eighth Amendment claim seeking equitable plaintiffs to pursue individual claims for injunctive relief, relief for inadequate medical care until the class action there is a divergence of opinion among the unpublished filed in 2001 has been fully litigated"); Rincon v. Cate, district court decisions addressing this matter. Some courts 2010 W L 5863894, *4 (S.D.Cal.2010) (authorizing have concluded that the plaintiff may not pursue any plaintiff to "maintain a separate suit arising from his action for individual equitable relief during the pendency discrete medical condition"); Watson v. Sisto, 2011 WL of the Plata class action. See e.g. Grajeda v. Horel, et al., 533716, *4--8 (E.D.Cal.2011), adopted 2011 WL 2009 WL 302708, *5--6 (N.D.Cal.2009) (dismissing 1219298 (E.D.Cal.2011) (granting in part defendants' plaintiff's equitable claims to obtain, inter alia, a cane and motion to dismiss plaintiff's claims for injunctive relief, leg brace because such relief is encompassed by Plata ); authorizing plaintiff to proceed only on his "discrete, Meyer v. Schwarzenegger, 2008 WL 2223253, *14--15 individualized claims for equitable relief"). (dismissing plaintiff's claim to obtain, inter alia, physical therapy for his chronic knee condition because he was *5 The court's review of these cases and the Plata "precluded, as a member of the Plata class from seeking stipulation supports the reasonable construction set forth injunctive relief in an individual action"); Diaz v. Sisto, in Burnett, as the undersigned previously concluded in 2010 WL 624618, *8 (E.D.Cal.2010) (plaintiff, a diabetic, Watson v. Sisto, supra, 2011 WL 533716. The court claiming that the simultaneous lines for obtaining insulin applies that analysis here. and food were too long to accomplish both, sought insulin injections twice a day and sufficient food, as well as a To the extent that plaintiff's complaint challenges court order modifying the time for providing treatment to institutional and state policies and procedures relative to insulin dependent diabetics; the court dismissed "any the general provision of medical services, including claim for injunctive relief Plaintiff may have [because it] testosterone treatments, such claims are encompassed would fall under the class action in Plata [,]" citing within the broad goals of Plata to provide constitutionally adequate medical care to all California prisoners with Within 21 days after being served with these findings and serious medical needs. Thus, plaintiff's general claims for recommendations, any party may file written objections system-wide reform (asserted throughout the FAC), should with the court and serve a copy on all parties. Such a be dismissed. The dismissal of these claims dictates the document should be captioned "Objections to Magistrate dismissal of CDCR Secretary Matthew Cate. Judge's Findings and Recommendations." Any response to the objections shall be filed and served within 14 days In contrast is plaintiff's equitable request to obtain after service of the objections. The parties are advised that adequate medical care for himself only, including the failure to file objections within the specified time may reinstatement of his testosterone treatments. Because this waive the right to appeal the District Court's order. discrete, individualized claim for equitable relief is not Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991). encompassed within the Plata class action, it should not be dismissed pursuant to the instant motion. E.D.Cal.,2011.

The question remains, however, whether plaintiff's Jaspar v. Khoury claim for individual equitable relief (or, for that matter, Not Reported in F.Supp.2d, 2011 WL 2457904 (E.D.Cal.) this action) should proceed despite plaintiff's failure to © 2012 Thomson Reuters. respond to the court's order and to file an opposition to No Claim to Orig. US Gov. Works. defendants' motion. The claim is central to this action-the alleged denial of the treatment plaintiff seeks is also the cornerstone of plaintiff's damages claim. In addition, the pending motion is limited in scope; defendants do not seek to dismiss this action in its entirety.

Therefore, the court concludes that plaintiff's individual equitable claim should proceed, at least for present purposes, along with his damages claim. Nonetheless, the undersigned additionally recommends that any further failure of plaintiff to respond to an order of this court, or failure to abide by the Federal Rules of Civil Procedure or the Local Rules of this court, should result in the dismissal of this action.

CONCLUSION

For the foregoing reasons, IT IS HEREBY RECOMMENDED that:

1. Defendant's motion to dismiss (Dkt. No. 73) be granted in part, and denied in part;

2. Plaintiff's equitable claims for system-wide reform be dismissed;

3. Defendant Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation, be dismissed from this action;

4. This action proceed on plaintiff's damages claim and his individual claim for equitable relief; and

5. Plaintiff is informed that any further failure to respond to an order of this court, or failure to abide by the Federal Rules of Civil Procedure or the Local Rules of this court, will result in the dismissal of this action.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).


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