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Theodore Butler v. Clark Kelso

May 2, 2013


The opinion of the court was delivered by: Ruben B. Brooks, Magistrate Judge United States District Court


Plaintiff Theodore Butler, a state prisoner proceeding pro se and in forma pauperis, filed a Complaint on November 16, 2011, pursuant to 42 U.S.C. § 1983 [ECF Nos. 1, 4]. On May 23, 2012, he filed a First Amended Complaint alleging that Defendants, prison officials, violated his Eighth Amendment right to be free from cruel and unusual punishment by acting with deliberate indifference to his serious medical needs. (First Am. Compl. 4-8, ECF No. 23.)*fn1

Defendant Kelso filed an Answer on June 7, 2012 [ECF No. 26]. The remaining Defendants, Jayunsundara, Walker, Rivera, Glynn, Zamora, and Barnett, filed an Answer on July 5, 2012 [ECF No. 38].

Plaintiff's "Motion To Amend His Complaint's Prayer For Relief To Include Request For Prison Release Order" ("Motion to Amend") was filed nunc pro tunc to October 17, 2012 [ECF No. 69]. Defendant Kelso filed a Notice of Non-opposition to Plaintiff's Motion to Amend on November 1, 2012 [ECF No. 71]. Jayunsundara, Walker, Rivera, Glynn, Zamora, and Barnett filed Defendants' Opposition to Plaintiff's Motion to Amend on November 9, 2012 [ECF No. 73].

Because Butler requested that he be allowed to amend his Complaint to include a request for a prison release order, see Pl.'s Mot. Amend Compl.'s Prayer 1, ECF No. 69, on November 13, 2012, the Court directed Defendants to file a supplemental brief "addressing the applicability of Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) . . . ." (Mins. 1, ECF No. 74.) Defendant Kelso filed his supplemental brief on November 19, 2012, in response to the order [ECF No. 76]. The remaining Defendants also submitted their Court-ordered supplemental brief on the same date. [ECF No. 77].*fn2

Butler filed a Reply to Defendants' Opposition on November 28, 2012 [ECF No. 81].

For the reasons discussed below, the Motion to Amend [ECF No. 69] is DENIED.


This is a civil rights action brought under 42 U.S.C. § 1983 by a California state prisoner [ECF No. 23]. Butler contends that his constitutional rights were violated while he was incarcerated at Richard J. Donovan State Prison between May 19, 2010, and October 19, 2011. (See First Am. Compl. 3, ECF No. 23.) Plaintiff maintains that the Defendants violated his Eighth Amendment rights by acting with deliberate indifference to his serious medical needs. (See id. at 4.) He alleges that Defendants Kelso, Walker, Barnett, Glynn, and Zamora refused to authorize a drug needed to treat Butler's hepatitis C virus. (Id. at 6-7.) Plaintiff further contends that Defendant Glynn reviewed Plaintiff's administrative appeal at the second level and responded, "You will receive hepatitis C medication if recommended by the Infectious Disease Specialist . . . ." (Id. at 7, 39.) Butler asserts that he was seen by a specialist who recommended boceprevir, a protease inhibitor, but Defendants continued to deny him the drug. (Id. at 7.) Defendant Jayunsundara is a nurse practitioner at the prison. (Id. at 8.) Plaintiff asserts that Jayunsudara denied his request for "reasonable accommodation of outpatient medical diet and dietary supplements." (Id.)


A. Motion Liberally Construed

In Plaintiff's current motion, he requests that the Court allow him to amend his First Amended Complaint pursuant to Federal Rule of Civil Procedure 15(a)(2). (Pl.'s Mot. Amend Compl.'s Prayer 1, ECF No. 69.) Butler wishes to include a request for a "Prison Release Order" in his prayer for relief. (Id.) Although Plaintiff alleges that he is moving to amend only to add an additional prayer for relief, his request is based on allegations not asserted in his original or First Amended Complaint. (See id.; see generally First Am. Compl., ECF No. 23.) Butler is seeking a Prison Release Order "due to prison overcrowding -- and the financial crisis of California Prison Health Care Services as direct result." (Pl.'s Mot. Amend Compl.'s Prayer 1, ECF No. 69.) Other than this motion, Plaintiff's pleadings make no mention of prison overcrowding as a basis for relief. (See generaly Compl., ECF No. 1; First Am. Compl., ECF No. 23.)

Thus, construing Plaintiff's motion liberally, as required by Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Court finds that Butler's motion is more properly construed as a motion for leave to amend to include an additional Eighth Amendment violation based on prison overcrowding, and to add an additional prayer for relief based on this claim.

B. Failure to State a Claim Upon Which Relief May be Granted

1. Legal Standards

a. Sua sponte dismissal of claims

The Prison Litigation Reform Act of 1995 ("PLRA") requires courts to review complaints filed by prisoners against officers or employees of governmental entities. See 28 U.S.C.A. §§ 1915(e)(2)(B), 1915A(b) (West 2012); Lopez v. Smith, 203 F.3d 1122, 1124, 1126-28 (9th Cir. 2000) (en banc). Courts must dismiss complaints or any portion of complaints that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. Lopez v. Smith, 203 F.3d at 1126-27.

Section 1915(e)(2)(B)(ii) essentially "'parallels the language of Federal Rule of Civil Procedure 12(b)(6).'" Id. at 1127 (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). Section 1915(e)(2)(B)(ii) requires the Court to dismiss the case if "'at any time . . . the court determines that . . . the action or appeal . . . fails to state a claim on which relief may be granted.'" Barren, 152 F.3d at 1194 (quoting 28 U.S.C. § 1915(e)(2)(B)(ii)). The same standard of review applies to a sua sponte dismissal under § 1915(e)(2)(B)(ii) or a dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138 (9th Cir. 2005) (citing id.).

b. Federal Rule of Civil Procedure 8(a)(2) and conclusory allegations

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." In both, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 663 (2009), the Supreme Court held that "the pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 566 U.S at 678 (quoting Twombly, 550 U.S. at 555).

Butler's pleading must contain "enough facts to state a claim to relief that is plausible on its face." 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." Ashcroft, 556 U.S. at 678. The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (citing Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003)); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The court does not look at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Twombly, 550 U.S. at 563 n.8.

Further, the court need not accept generalized allegations in the complaint as true; rather, it must "'examine whether [they] follow from the description of facts as alleged by the plaintiff.'" Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (quoting Brian Clewer, Inc. v. Pan American World Airways, Inc., 674 F. Supp. 782, 785 (C.D. Cal. 1986)); see Halkin v. VeriFone, Inc., 11 F.3d 865, 868 (9th Cir. 1993); see also Cholla Ready Mix, Inc., 382 F.3d at 973 (quoting Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)). "Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

c. Standards applicable to pro se litigants

Where a plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, courts may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient . . . ." Id.; see also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (finding conclusory allegations unsupported by facts insufficient to state a ...

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