United States District Court, S.D. California
STEVE W. CHENNAULT, CDCR #D-93021, Plaintiff,
MORRIS; R. CAMPBELL; N. RIDGE; LOWE; P. NEWTON; K. SEELY; M. GLYNN, Defendants.
ORDER: (1) DENYING MOTION TO APPOINT COUNSEL WITHOUT PREJUDICE; (2)
GRANTING DEFENDANTS CAMPBELL, RIDGE, NEWTON, SEELY, GLYNN AND LOWE'S MOTION TO
DISMISS PURSUANT TO FED.R.CIV.P. 12(B)(6); (3) GRANTING IN PART AND DENYING IN
PART DEFENDANT MORRIS' MOTION TO DISMISS PURSUANT TO FED.R.CIV.P. 12(B)(6) AND
(4) DENYING DEFENDANT LOWE'S MOTION TO STRIKE AS MOOT (ECF DOC. NOS. 12, 13, 37)
BARRY TED MOSKOWITZ, Chief District Judge.
In this prisoner civil rights case, Steve Chennault ("Plaintiff"), is proceeding pro se and in forma pauperis ("IFP") pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915(a). Defendants Morris, Campbell, Ridge, Newton, Seely and Glynn have filed a Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b)(6) (ECF Doc. No. 12). Defendant Lowe filed a separate Motion to Dismiss Plaintiff's Complaint, or in the alternative, Motion to Strike (ECF Doc. No. 13.) After requesting, and receiving, extensions of time to file his Opposition, Plaintiff filed his Opposition to both motions (ECF Doc. No. 25.) All Defendants filed a Reply to Plaintiff's Opposition and the Court permitted Plaintiff to file a Sur-Reply (ECF Doc. Nos. 26, 27, 30.) In addition, Plaintiff has filed a Motion to Appoint Counsel. (ECF Doc. No. 37.)
I. Factual Background
Plaintiff was housed at the Richard J. Donovan Correctional Facility ("RJD") in 2011 and 2012. ( See Compl. at 1.) On February 16, 2012, Plaintiff was transported to an outside medical facility for a tonsillectomy surgery. ( Id. at 4.) Plaintiff claims that medical personnel from this hospital recommended a "soft diet for 10 days" following the surgery. ( Id. )
Plaintiff was returned to RJD on the same day as his surgery and he was issued a soft diet "chrono" by Nurse Practitioner Seifulla for fourteen (14) days. ( Id. ) The next day, on February 17, 2012, Plaintiff "notified staff that he did not receive the soft diet." ( Id. ) Plaintiff claims an RJD licensed vocational nurse ("LVN") contacted Defendant Morris, the RJD dietician, and "inquired about the soft diet" for Plaintiff. ( Id. at 5.) Defendant Morris allegedly informed the LVN that RJD does not "have specific soft food diets" and Plaintiff should "pick and choose" from the general population menu. ( Id. )
Plaintiff informed Sergeant Davy of the position stated by Defendant Morris and told Sergeant Davy that he "was in pain and wasn't returning to his cell." ( Id. ) Plaintiff claims that he was in pain because of the "humiliating condition [Defendant Morris] placed Plaintiff" and Defendant Morris "refused to issue Ensures as a protein supplement." ( Id. ) Plaintiff claims Sergeant Davy was "disturbed by all that the Plaintiff told him" and went to speak to Defendant Campbell at "Facility A clinic" regarding the diet. ( Id. at 6.) Defendant Campbell issued Plaintiff a chrono for Ensure for thirty (30) days on February 17, 2012. ( Id. ) However, Plaintiff claims he was not "immediately provided the Ensures" and had to choose food "off the general population menu trays" for seven days. ( Id. ) When Plaintiff did receive the Ensures, he claims that Defendant Campbell only prescribed three (3) Ensures a day which falls far below the minimum standard for proper nutrition as required by prison guidelines. ( Id. at 8.) On February 26, 2012, Plaintiff alleges that he developed a "throat infection" due to having to "force down hard foods" for which he was prescribed antibiotics. ( Id. )
In addition, Plaintiff alleges that he suffers from "chronic destructive pulmonary disease (COPD)." ( Id. at 10.) Defendant Ridge prescribed Plaintiff "salmeterol" which is an inhalant to treat his COPD. ( Id. ) However, Plaintiff alleges he began to suffer from "constant coughing, choking and shortness of breath, " when he started using this medication. ( Id. ) Plaintiff claims that he filed a grievance notifying prison officials that this medication "poses a serious health risk to African Americans including untimely death." ( Id. ) The use of the medication was discontinued by Nurse Practitioner Seifulla "due to the serious adverse effects Plaintiff was experiencing." ( Id. at 11.) Plaintiff further claims that "Defendants Ridge and Lowe never took the initiative to discontinue" this medication. ( Id. ) As a result of the discontinuation of the medication, Plaintiff's "medical problems decreased." ( Id. ) Plaintiff alleges Defendants Ridge and Lowe knew Plaintiff suffered from "hypertension and prostate disease." ( Id. at 12.) He further claims these Defendants should have known "caution was to be used when Plaintiff was on medication for other medical problems." ( Id. )
II. Motion to Appoint Counsel
Plaintiff requests the appointment of counsel to assist him in prosecuting this civil action. The Constitution provides no right to appointment of counsel in a civil case, however, unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons. This discretion may be exercised only under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires an evaluation of both the likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.' Neither of these issues is dispositive and both must be viewed together before reaching a decision." Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
The Court DENIES Plaintiff's request without prejudice because neither the interests of justice nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.
III. Defendants' Motion to Dismiss Plaintiff's Complaint
Defendants Morris, Campbell, Ridge, Newton, Seely and Glynn seek dismissal of Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds that: (1) State officials are immune from monetary damages in their official capacities; and (2) Plaintiff has failed to state an Eighth Amendment claim against any of them. ( See Defs. Morris, Campbell, Ridge, Newton, Seely and Glynn's Notice of Mot. in Supp. of Mot. to Dismiss (ECF Doc. No. 12) at 1-2.) Defendant Lowe seeks dismissal pursuant to FED.R.CIV.P. 12(b)(6) on the same grounds, along with seeking to strike Plaintiff's claims for punitive damages pursuant to FED.R.CIV.P. 12(f). ( See Lowe's Notice of Mot. to Dismiss (ECF Doc. No. 13) at1-2.)
A. FED.R.CIV.P. 12(b)(6) Standard of Review
A Rule 12(b)(6) dismissal may be based on either a "lack of a cognizable legal theory' or the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff's complaint must provide a "short and plain statement of the claim showing that [he] is entitled to relief." Id. (citing FED.R.CIV.P. 8(a)(2)). "Specific facts are not necessary; the statement need only give the defendant[s] fair notice of ...