The opinion of the court was delivered by: Ralph R. Beistline United States District Judge
Michael McNeil, a state prisoner appearing pro se and in forma pauperis, brings this civil rights action under 42 U.S.C. § 1983. McNeil is currently in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), incarcerated at the Valley State Prison, Chowchilla. The Complaint arises out of McNeil's incarceration at the Pleasant Valley State Prison ("PVSP"), the California State Substance Abuse Treatment Facility ("SATF"), and California State Prison, Corcoran ("CSP-C").*fn1
This Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity.*fn2 This Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief."*fn3 Likewise, a prisoner must exhaust all administrative remedies as may be available,*fn4 irrespective of whether those administrative remedies provide for monetary relief.*fn5
In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief."*fn6 "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation."*fn7 Failure to state a claim under § 1915A incorporates the familiar standard applied in Federal Rule of Civil Procedure 12(b)(6), including the rule that complaints filed by pro se prisoners are to be liberally construed, affording the prisoner the benefit of any doubt, and dismissal should be granted only where it appears beyond doubt that the plaintiff can plead no facts in support of his claim that would entitle him or her to relief.*fn8
This requires the presentation of factual allegations sufficient to state a plausible claim for relief.*fn9 "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'"*fn10
Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true.*fn11 "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."*fn12
II. GRAVAMEN OF THE COMPLAINT
McNeil filed an 89-page, 365 paragraph Complaint setting forth his medical history commencing in 1989 through April 2012. McNeil suffered a severe back injury in 1989 and another injury to his neck in 1993.*fn13 McNeil was arrested in 1998, sentenced to life imprisonment in April 1999, and committed to the custody of CDCR in November 1999. McNeil contends that the Defendants in this case are indifferent to his serious medical needs in violation of the Eighth Amendment [First Cause of Action]. Specifically, McNeil contends that Defendants have refused to either prescribe effective pain medication or treat his medical condition by surgery. McNeil also alleges a violation of his Fourteenth Amendment right to confidentiality of his medical records [Second Cause of Action].*fn14
III. OTHER PENDING LAWSUIT
McNeil has pending in this Court an earlier "deliberate indifference" action brought under 42 U.S.C. § 1983, McNeil v. Hayes, 1:10-cv-01746-AWI-SKO ("McNeil I"),*fn15 arising out of McNeil's incarceration at SATF between August 2000 and September 2009. In that action, McNeil named the medical personnel at SATF.*fn16 After screening,*fn17 the Court directed service of the Second Amended Complaint in that action as against Defendant Hayes, Raman, Soto, Byers, Does and Rotman on McNeil's Eighth Amendment medical care claims.*fn18 The claims against the other Defendants were dismissed for failure to state a cause of action.*fn19
A. First Cause of Action [Deliberate Indifference/Retaliation]
McNeil's First Cause of Action may be divided into five categories: (1) against those sued in their supervisory capacity; (2) arising out of his first incarceration at SATF (through September 22, 2009); (3) arising out of his incarceration PVSP after transfer from SATF (September 22, 2009 thru March 9, 2011); (4) arising out of his incarceration at SATF after retransfer from PVSP (March 9, 2011 through May 16, 2011); and (5) arising out of his subsequent incarceration at CSP-C (after May 16, 2011).
1. Supervisory Defendants
Section 1983 suits do not support vicarious liability; a plaintiff must demonstrate that each defendant personally participated in the deprivation of his or her rights.*fn20 To impose liability on a supervisor, the supervisor's wrongful conduct must be sufficiently causally connected to the constitutional violation.*fn21
That is, the official must "implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation."*fn22
A person deprives another "of a constitutional right, within the meaning of section 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 [the plaintiff complains]." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978) (Johnson) (emphasis added). The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation. [Citations omitted.]*fn23
A review of the Complaint reveals that it does not meet that standard as to: Matthew Cate, Secretary CDCR; James Yates, Warden PVSP; Kathleen Allison, Warden SATF; Connie Gibson, Warden SATF; J. Buckley, Associate Warden PVSP; and J. Clark Kelso, Receiver CDCR.
2. First Incarceration at SATF
The present posture of this case and McNeil I requires this Court to determine whether this case is duplicative of McNeil I and, therefore, should be dismissed or disregarded, as appropriate. "Plaintiffs generally have 'no right to maintain two separate actions involving the same subject matter at the same time in the same court against the same defendant.'"*fn24 In such a case, "[a]fter weighing the equities of the case, the district court may exercise its discretion to dismiss a duplicative later-filed action, to stay the action pending resolution of the previously filed action, to enjoin the parties from proceeding with it, or to consolidate both actions."*fn25
To determine whether a suit is duplicative, we borrow from the test for claim preclusion. As the Supreme Court stated in The Haytian Republic, "the true test of the sufficiency of a plea of 'other suit pending' in another forum [i]s the legal efficacy of the first suit, when finally disposed of, as 'the thing adjudged,' regarding the matters at issue in the second suit." 154 U.S. 118, 124, 14 S. Ct. 992, 38 L. Ed. 930 (1894); see also Hartsel Springs Ranch, 296 F.3d at 987 n. 1 ("[I]n the claim-splitting context, the appropriate inquiry is whether, assuming that the first suit were already final, the second suit could be precluded pursuant to claim preclusion."); Curtis, 226 F.3d at 139--40 ("[T]he normal claim preclusion analysis applies and the court must assess whether the second suit raises issues that should have been brought in the first."); Davis v. Sun Oil Co., 148 F.3d 606, 613 (6th Cir.1998) (per curiam) (referring to the doctrine against claim-splitting as "the 'other action pending' facet of the res judicata doctrine").
Thus, in assessing whether the second action is duplicative of the first, we examine whether the causes of action and relief sought, as well as the parties or privies to the action, are the same. See The Haytian Republic, 154 U.S. at 124, 14 S. Ct. 992 ("There must be the same parties, or, at least, such as represent the same interests; there must be the same rights asserted and the same relief prayed for; the relief must be founded upon the same facts, and the . . . essential basis, of the relief sought must be the same." (internal quotation marks omitted)); Curtis, 226 F.3d at 140 (holding that the trial court did not abuse its discretion in dismissing "Curtis II claims arising out of the same events as those alleged in Curtis I," which claims "would have been heard if plaintiffs had timely raised them"); Serlin, 3 F.3d at 223 ("[A] suit is duplicative if the claims, parties, and available relief do not significantly differ between the two actions." (internal quotation marks omitted)).*fn26
The Ninth Circuit then laid down the following "same causes of action" test:
We examine first whether the causes of action in Adams's two suits are identical. To ascertain whether successive causes of action are the same, we use the transaction test, developed in the context of claim preclusion. "Whether two events are part of the same transaction or series depends on whether they are related to the same set of facts and whether they could conveniently be tried together." Western Sys., Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir.1992) (citing Restatement (Second) of Judgments § 24(1) (1982)). In applying the transaction test, we examine four criteria:
(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.
Costantini v. Trans World Airlines, 681 F.2d 1199, 1201--02 (9th Cir.1982). "The last of these criteria is the most important." Id. at 1202.*fn27
The claims in McNeil I and the allegations in this case covering the period prior to McNeil's transfer to PVSP overlap. The Court notes that because it does not designate any individual as a defendant or otherwise seek any relief in connection thereto, this appears to be for the most part superfluous background information. On the other hand, to the extent that McNeil may be seeking relief based upon the events occurring during that period of incarceration, it is duplicative of the pending action and must be disregarded in this case.
In addition to his Fourteenth Amendment invasion of privacy claim (Second Cause of Action discussed below), McNeil alleges that certain correctional officers retaliated against him for filing an inmate grievance by wrongfully "influencing" PVSP medical staff to discontinue McNeil's pain medication.*fn28 McNeil initiated a grievance, which was handled at the First Level.*fn29
In your appeal you claim on November 11, 2010, you carried a 70 lb. punching bag to the workout area and had help hanging it up. You state you proceeded to do a Martial Arts workout for about 10 minutes before Correctional Officer Morris called you to the Observation Post and informed you that you were misusing the bag as Martial Arts are not allowed to be practiced. You state you received a CDC 128-B, Informative Chrono, on November 16, 2010, authored by Officer Morris which you claim is an attempt by Officer Morris to use his influence to manipulate medical staff into discontinuing your pain meds.
You request the CDC 128-B authored by Officer Morris be removed from your Central File (C-File) and that the practice of Correctional Staff being allowed to use their unqualified medical observations to stop. You state this CDC 602 is Officer Morris' notice that if your pain meds are discontinued based on his observations you will file suit alleging violation of your 8th Amendment right to exercise and pain relief.
During the interview, you stated you will withdraw your appeal if Officer Morris will remove the CDC 1288 out of your C-File. You also state if your request is not met, you will fight this issue in the courts. I advised you Officer Morris was within the scope of his duties and has the right to observe and document any misuse of the exercise equipment.
Effective communication was established by speaking the English language in a manner using simple, non-complex words to make sure McNeil understood the process. McNeil was able to respond to all questions, understand the interviewer's recommendations and explain in his own words the interviewer's decision.
A thorough review of your appeal issue was conducted. The California Code of Regulations (CCR), Title 15, Section 3000, states, "General Chrono means a CDC Form 128-B which is used to document information about inmates and inmate behavior. Such information may include, but is not limited to, documentation of enemies, records of disciplinary or classification matters, pay reductions or inability to satisfactorily perform a job, refusal to comply with grooming standards, removal from a program, records of parole or service matters." Officer Morris acted within the scope of his duties.
Considering the above information, your appeal is PARTIALLY GRANTED on the first level of review. Your request to have the CDC 128-B authored by Officer Morris removed from your C-File is GRANTED. The original CDC 128-B was never placed in your C-File and has been attached to this CDC 602. Your request for the practice of Correctional Staff being allowed to use their unqualified medical observations to stop is DENIED. A CDC 128-B is a General Chrono that can be utilized to document Staff observations; however, specific medical information should not be referred to in those chronos. A new CDC 128-B has been submitted and will be placed in your C-File. A copy of this *fn30 CDC 128-B is also attached to this CDC 602. Although McNeil sought review at the Second Level, which was denied by Warden Trimble,*fn31 it does not appear that he exhausted this claim by seeking further review at the Director's Level. McNeil further alleges that C/O Morris, at the request of C/O Catlett video-taped McNeil exercising and hitting a punching bag.
McNeil also alleges that C/O Catlett attempted to influence Drs. Park and Taherpour by pointing out to them McNeil's activities. McNeil alleges that Dr. Park refused to continue his prescription for pain medications (morphine/gabapentin) based upon the reports made by correctional staff. According to McNeil, also based upon these reports Dr. Taherpour recommended to the Pain Committee that McNeil not be given morphine/gabapentin. McNeil exhausted his administrative remedies on these claims.*fn32
DIRECTOR'S LEVEL DECISION:
Your CDCR 602-HC indicated you wished to make a staff complaint against all members of the Pleasant Valley State Prison Medical Authorization Committee and the Pain Committee from November 11, 2010 to the present, as well as several named staff members, and the complaint was based upon your contention that correctional officers (COs) influenced medical staff to discontinue your morphine by reporting you carried a heavy punching bag across the track, hung it up on the bag rack, and punched it. You told officers if your medication was discontinued because of that report you would sue them. You stated your constitutional rights were violated.
You requested the following:
* A sum of $500,000.00 to settle out of court;
* An investigation to be conducted regarding custody staff having access to inmate medical information in violation of the law.
The informal level appeal was bypassed and your appeal was elevated to the first level of review.
At the first level, submitted on January 30, 2010, you staled your issues and requests as noted above.
The First Level Response (FLR) stated your appeal was partially granted and indicated you were seen by the doctor on January 27, 2011, and were advised that morphine and gabapentin were no longer medically indicated, and a taper off period was initiated. The doctor said she had asked custodial staff for assistance in observing inmates due to her limited presence on the yard. There was no evidence discovered which revealed unprofessional or inappropriate behavior by medical or custodial staff. The CDC 128-B noted the COs observations, not his opinion of your medical status; your doctor made the decision based upon her examination and other pertinent data; and you would be ducated by the appeals pain review team at Pleasant Valley State Prison (PVSP) to interview you about your alleged need for a pain management program, and to have the opportunity to rebut your PCP's decision to terminate your current pain medicine regimen. The FLR concluded monetary damages were denied and not within the jurisdiction of the department.
At the second level, submitted on March 4, 2011, you slated you were dissatisfied; you were seen by another doctor two weeks after your medications were discontinued; he recommended you to the pain committee; you had declarations of witnesses; and you asked who told the officer you took morphine for pain, and stated you never signed a release.
The Second Level Response (SLR) stated your appeal was partially granted, reiterated the findings of the FLR, and further stated you were no longer a patient of PVSP; you were encouraged to engage the medical services of your new institution; your appeal did not meet staff complaint criteria; your request to exhaust remedies and seek litigation contradicted ...