The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis on a complaint filed pursuant to 42 U.S.C. § 1983. Petitioner alleges that he was denied medical treatment while housed at Sacramento County Jail, in violation of the Eighth Amendment. He also alleges that he was denied diabetic snacks in violation of the Eighth and First Amendments. Defendants have moved to dismiss the complaint for failure to state a claim, and plaintiff has opposed the motion. For the reasons outlined below, the undersigned recommends that the court grant the motion to dismiss, and provide plaintiff with leave to amend Count Two.
Count One Plaintiff alleges that he was not provided with his prescribed evening diabetic snack on numerous occasions while he was housed as a pre-trial detainee at Sacramento County Jail in 2010 and 2011. See Doc. No. 1 at 4-5; see also Doc. No. 13-2 at 6.*fn1 Plaintiff additionally and more specifically alleges that defendant Mullin failed to give him his diabetic snack on June 21, 2011 "out of revenge for lodging a complaint against him." See Doc. No. 1 at 6.
Plaintiff alleges that he sought relief by filing a petition for writ of habeas corpus with the state Superior Court on June 27, 2011. See Doc. No. 1 at 5. In his state court petition, plaintiff alleged that he had been denied his prescribed diabetic snacks on various dates in 2010 and 2011, and also alleges that on June 19, 2011, defendant Mullin failed to give him his snack because plaintiff had filed a grievance against him. See Doc. No. 13-2 at 7-10. He alleges that, on October 6, 2011, the Superior Court scheduled an evidentiary hearing for October 28, 2011, and on October 18, 2011, the Sacramento County Sheriff medical personnel "changed the policy and started to pass out diabetic snacks themself [sic]." Id.; see also Doc. No. 13-2 at 14.
On November 2, 2011, the Superior Court issued an order granting plaintiff's oral request that the state court habeas petition be dismissed. See Doc. No. 13-2 at 14-15. The Superior Court's order reads that "[a]t the evidentiary hearing, Respondent provided the Court and Petitioner with a copy of Policy # 1437a effective October 21, 2010 [sic] to describe the procedure for administering and providing a bedtime and/or diabetic snack. Thereafter, Petitioner, who was represented by appointed counsel, orally requested that his petition be dismissed." See Doc. No. 13-2 at 14-15.
According to the plaintiff,
[t]he new policy is welcome and seems to be working, but it won't undo the damages to my eyes, legs, and feets. Therefore, I am filing a 42 U.S.C. § 1983 civil rights complaint. This problem has existed from December 31th, 2010 through June 19th, 2011. This plaintiff gave authorities notification of the challenged condition, but the administration fail to take remedial action before this plaintiff suffered injuries that's shown [supra].
Plaintiff alleges that he has been an inmate at Sacramento County Jail since January 20, 2009. See Doc. No. 1 at 8. He alleges that, on that date, he did an "in-take interview" with medical staff and advised them that he suffered from: diabetes, hypertension, end stage cirrhosis of the liver (stage 4 fibrous), and hepatitis C. Id. at 8-9. According to plaintiff, he has received treatment for his diabetes, hypertension, and mental issues, but not for his cirrhosis or hepatitis. Id. at 9.
Plaintiff further alleges that an unnamed doctor lied to plaintiff about his test results, and that, in June 2011, plaintiff was prescribed a laxative even though plaintiff already had diarrhea. See Doc. No. 1 at 9.
Plaintiff further alleges that defendant Cannon was cruel and malicious, and violated his Eighth Amendment rights, when she responded to his grievance seeking treatment with an outside carrier. Cannon allegedly advised plaintiff that he would be required, among other things, to find a doctor in the community to provide treatment, and to cover all costs (including medications and the salaries of deputies used in transport) prior to any medical appointment. See Doc. No. 1 at 10. Plaintiff alleges that defendant Cannon had previously informed him in response to a prior grievance that "correctional health does not treat hepatitis ©..." See Doc. No. 1 at 9.
Plaintiff alleges that defendant Maness has failed to respond to his appeals of grievances, and that defendant Maness, as facility commander, has failed to implement policies and procedures which would allow treatment for inmates suffering from hepatitis C and cirrhosis. See Doc. No. 1 at 10.
Defendants move to dismiss the complaint, alleging that plaintiff has failed to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Defendants argue that the claims raised in Count One regarding the denial of plaintiff's diabetic biscuits are barred by res judicata, because plaintiff previously litigated his identical claims in state court and voluntarily dismissed the action. See Doc. No. 13-1 at 5-6.
Defendants additionally argue that plaintiff has failed to articulate a colorable retaliation claim against defendant Mullin, because: (1) plaintiff failed to exhaust his administrative remedies regarding the June 21, 2011 deprivation; and (2) plaintiff's exercise of his First Amendment rights were not chilled by defendant Mullin's purported denial. See Doc. No. 13-1 at 10. Although plaintiff alleged in his state court petition that defendant Mullin denied plaintiff's biscuit out of revenge on June 19, 2011, defendants do not address whether any potential retaliation claim would be barred by res judicata. See Doc. No. 13-2 at 10.
As to Count Two, defendants argue that plaintiff has failed to state a claim for violation of his Eighth Amendment rights, because plaintiff's factual allegations fail to establish:
(1) that plaintiff suffered from hepatitis C and cirrhosis; (2) that defendants Maness and Cannon were aware of plaintiff's purported conditions; or (3) that such conditions constituted a serious medical need. See Doc. No. 13-1 at 9 (plaintiff's allegation that defendants treated his cirrhosis with a laxative "fails to capture the essence of deliberate indifference.")
Defendants further argue that any claim of supervisory liability against defendant Maness fails, because (1) defendant Maness's failure to respond to grievance appeals does not rise to the level of a constitutional violation; and (2) plaintiff fails to attribute to defendant Maness a policy which is alleged to have caused plaintiff's injuries. See Doc. No. 13-1 at 12.
Defendants also argue that plaintiff's claims regarding his medical treatment which arose before December 1, 2009 are barred by the two-year statute of limitations. See Doc. No. 13-1 at 12-13.
Plaintiff opposes the motion to dismiss. He argues that the claims he presented to the state court are not barred by res judicata, because he seeks damages in this court, something he was not permitted to do on his habeas application. See Doc. No. 20 at 2.
As to the supervisory liability claims, plaintiff alleges that defendant Maness, among others, failed to follow Policy Number 1437a, which plaintiff states had been in place for a year before plaintiff filed his habeas petition. See Doc. No. 20 at 4. Plaintiff further argues that his Eighth Amendment claims regarding the treatment of hepatitis C and cirrhosis are not time-barred, because his statute ...