The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE
PROCEED ON PLAINTIFF'S CLAIM FOR DEPRIVATION OF OUTDOOR EXERCISE
AGAINST DEFENDANTS ROHRANDANZ AND KANE FOR MONEY DAMAGES, AND
THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED
OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
I. RELEVANT PROCEDURAL HISTORY
Lawrence L. Marsh ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on December 8, 2010. (Doc. 1.) The Court screened the Complaint pursuant to 28 U.S.C. 1915A and entered an order on August 29, 2011, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 12.) On January 18, 2012, Plaintiff filed the First Amended Complaint. (Doc. 26.) Five days later, on January 23, 2012, Plaintiff lodged a Second Amended Complaint, which was filed on December 21, 2012 and is now before the Court for screening. (Docs. 27, 30.)
II. SCREENING REQUIREMENT
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 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).
A complaint is required to contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 556 U.S. at 679. While factual allegations are accepted as true, legal conclusions are not. Id. at 678. The mere possibility of misconduct falls short of meeting this plausibility standard. Id. at 679.
III. SUMMARY OF SECOND AMENDED COMPLAINT
The events at issue in the Second Amended Complaint allegedly occurred at Pleasant Valley State Prison (PVSP) in Coalinga, California; California Correctional Institution (CCI) in Tehachapi, California; California Substance Abuse Treatment Facility (SATF) in Corcoran, California; and North Kern State Prison (NKSP) in Delano, California, when Plaintiff was incarcerated at each of those facilities. Plaintiff names as defendants Jerry Brown (Governor of California), Igbanosa (Medical Director at PVSP), Dr. Rohrandanz (Medical Doctor at PVSP), Cano (Correctional Counselor II at PVSP), Lovell (Correctional Counselor I at PVSP), Kane (LVN at PVSP and NKSP), Montoya (Correctional Counselor I at PVSP), Sing (LVN at SATF), and Dr. Genis (Medical Doctor at NKSP).
Plaintiff bring claims for conspiracy, retaliation, inadequate medical care, failure to protect, denial of access to the courts, denial of outdoor exercise, inadequate appeals process, and excessive force. Plaintiff's allegations, which are not entirely presented in chronological order, largely consist of recitals of the elements of causes of action, supported by conclusory statements. Plaintiff alleges that the claims of the nine named defendants are related because they all conspired to retaliate against him and deprive him of his constitutional rights. Plaintiff's factual allegations follow.
Plaintiff, who suffers from diabetes, was incarcerated at PVSP when these events began in 2008. Dr. Igbanosa called Plaintiff into his office and stated, "Dr. Rohrandanz asked me to talk to you personally because you have not been taking your insulin injections to maintain your diabetes because you say you can't take medications on an empty stomach and that Dr. Navasartian has [discontinued] your boost [medication] ... until you are scheduled for reconstructive surgery on your teeth and gums and you cannot chew regular food. Well, you are in prison and the cost for reconstructive surgery for inmates is not available at this time. You say you have been using exercise and diet to manage your diabetes for over thirty-five years before you came to prison, because of your allergic reaction to insulin. Both Doctor Rohrandanz and Navasartian can't see how you can be allergic to something you have not tried, and I agree. If you continue to require exercise and diet to manage your diabetes, in prison you will die, because regular exercise is not an option at this prison due to overcrowded and understaffed conditions and the lock downs they cause. PVSP is where your counselor has recommended you be housed, and if you remain noncompliant, he can make PVSP your placement for the duration of your sentence. I will not alter the objective Dr. Rohrandanz or Dr. Navasartian see as a remedy for your non-compliance." Second Amd Cmp, Doc. 30 at 6-7.) Plaintiff contends that the course of treatment Dr. Rohrandanz and Dr. Navasartian chose is medically unacceptable under the circumstances and Plaintiff, a minimum custody inmate, is inappropriately housed in a maximum custody prison and could have been transferred to a minimum level prison where adequate outdoor exercise is available if not for their conspiracy to punish Plaintiff for attempting access to the court. Plaintiff also contends that Dr. Igbanosa, who is a supervisor, failed to stop the adverse actions of his subordinates.
LVN Kane deprived Plaintiff of all outdoor exercise for over 120 days, causing him to contract a staff infection, and also denied him his personal property and access to the law library. LVN Kane paused in front of Plaintiff's cell door in administrative segregation (Ad Seg) and stated to an officer assisting her, "This one we don't need to give meds, per Dr. Rohrandanz, who told me not to give him his medication, allow him out of this cell or [give him] access to his property or any books or other writing material, [only] food and showers until further notice." LVN Kane caused Plaintiff's property to be confiscated, denied him outdoor exercise for over 120 days, and denied him access to the law library, which shut him out of court.
The following day, Correctional Counselor Cano had Plaintiff placed in Ad Seg in a cell with a very violent maximum security prisoner named Adolfo. Adolfo took Plaintiff's special diet food and would not allow Plaintiff to occupy the lower bunk where Plaintiff was assigned. Adolfo accused Plaintiff of being a snitch for telling about his sexual assault, pulled Plaintiff off the top bunk, and assaulted him, causing Plaintiff to be hospitalized with a fractured hip.
Correctional Counselor Lovell came into the Sensitive Needs Yard medical clinic and confronted Plaintiff, stating, "I need you to sign this statement so that I am not held responsible for whatever happened to you when you were housed on the general population yard. After all you are the one who claims you were sexually assaulted, not me." After Plaintiff filed 602 appeals regarding recalculation of his credits, due to defendant Lovell refusing him a job comparable to his previous prison job in order to pay down his restitution, all 602's submitted were never returned or replied to. Defendant Lovell denied Plaintiff's numerous requests for recalculation of credits by having another inmate come to Plaintiff's bunk and state, "The Counselor asked me to tell you that filing 602's will only make your situation worse." Second Amd Cmp at 10:24-25.
Correctional Counselor Montoya assaulted Plaintiff by hitting him with a clenched fist in a malicious or sadistic use of force which was not applied in good faith or in an effort to restore discipline, causing Plaintiff to be hospitalized with injuries. Defendant Montoya then created a false disciplinary report stating that Plaintiff had failed to respond to a direct order after he had called Plaintiff three times, but Plaintiff was hearing impaired and could not hear him.
A few days after Plaintiff returned from the hospital, defendant Mendoza ordered Plaintiff out of the law library, forcefully removed him, and filed a second disciplinary report claiming that Plaintiff was out of bounds, causing Plaintiff to lose 60 days of good time credit.
C/O Mendoza came into the gym barracks where Plaintiff was housed and had a conference with defendant Montoya, then called Plaintiff into the office. Plaintiff stated he did not want to come into the office with the person who had assaulted him. Then defendant Montoya sent an inmate to Plaintiff's bunk who stated, "The Counselor said that filing 602's will only made your situation worse." Second Amd Cmp at 12:26-27.
Defendants Montoya, Lovell, Kane, and Rohrandanz conspired to retaliate against Plaintiff by denying him all outdoor exercise necessary to manage his diabetes, causing Plaintiff's condition to worsen. Plaintiff's medical conditions include muscle weakness, hindering blood circulation, and high blood pressure and blood sugar, making Plaintiff more vulnerable to colds and other medical problems.
On or about July 28, 2010, Plaintiff suffered a diabetic stroke while seated in Dr. Navasartian's DDS office. Plaintiff woke up in the hospital after a seven-day diabetic coma and realized he was paralyzed on his left side, with right-side vision, hearing, speech, and balance impairment. Plaintiff was discharged back to the Sensitive Needs Yard under the care of Dr. Rohrandanz.
At the medical clinic, Dr. Rohrandanz's very humanitarian nurse confronted Plaintiff and said, "I am so relieved to see that you are ok. I am so sorry that it may have been my mistake that contributed to your stroke being as severe as it is. Dr. Rohrandanz told me to give you glucose because many of his patients suffer from low blood sugar. After I gave you gloucose your blood sugar spiked to over 615. I then realized that you suffered from high blood sugar and you were out cold so I could not cause you to throw up. Whatever you need just let me know personally and I will see that it is taken care of." Second Amd Cmp at 13:16-23.
On or about August 15, 2010, Plaintiff was transferred from PVSP to CCI. A few days afterward, Plaintiff submitted a medical request and was seen within a week by Dr. Yin, who treated Plaintiff's severly painful earache. Dr. Yin prescribed Plaintiff an earwax-removal kit. After using the earwax-removal kit, Plaintiff returned to see Dr. Yin on a regular visit and informed the doctor that he no longer had an earache. Plaintiff was tested for his hearing loss, and the test confirmed that he no longer needed the expensive hearing aid device that had been given him by Dr. Rohrandanz when Plaintiff requested an earwax-removal kit. Plaintiff alleges that Dr. Rohrandanz chose a course of treatment that was medically unacceptable, for personal gain, causing Plaintiff to suffer further injury for more than two years.
Plaintiff alleges that Dr. Igbanosa, a supervisor, failed to intercede in Dr. Rohrandanz and Montoya's conspiracy to move plaintiff from "G" yard, a Special Needs Yard, to "E" yard in the general population, subjecting him to possible assault by other inmates.
After using inhumane methods of confinement to punish Plaintiff, Dr. Rohrandanz and Montoya conspired to have Plaintiff escorted to the Lieutenants office to talk on the phone with Montoya, who stated, "Your counselor has advised me that she will be putting you up for transfer to McFarland Community Correctional Facility. I am faxing the Lieutenant another release for you to sign before you can be transferred." Second Amd Cmp at 16:15-18.
Allegations Arising After this Case Was Filed on December 8, 2010
Between approximately July 7, 2011 and November 7, 2011, LVN Kane acted under the direction of Dr. Genis and denied Plaintiff his medications to treat his diabetes. Plaintiff was transported to NKSP for a medical evaluation and placed in the general population. Plaintiff saw LVN Kane who told him "Let's get one thing straight. Dr. Genis has talked with Dr. Rohrandanz at PVSP and we know all about your case. If you do not take your insulin injections here you will spend the rest of your sentence in the reception unit where you will receive no outdoor exercise, no property, and no other out-of-unit privileges." Second Amd Cmp at 15:19-23.
Plaintiff requests monetary damages, declaratory relief, preliminary and permanent injunctive relief, and attorneys fees and costs.
The Civil Rights Act under which this action was filed provides:
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. "Section 1983 . . . creates a cause of action for violations of the federal Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted). "To the extent that the violation of a state law ...