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Jercich v. California Department of Corrections And Rehabilitation

United States District Court, E.D. California

July 18, 2019

GEORGE SHELDON JERCICH, Plaintiff,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.

          FINDINGS AND RECOMMENDATION TO GRANT DEFENDANTS' MOTIONS TO DISMISS WITH LEAVE TO AMEND EIGHTH AMENDMENT MEDICAL CARE CLAIM REGARDING THE ALLEGED FAILURE TO CONDUCT A CONCUSSION EXAMINATION (ECF NOS. 46, 47)

         George Sheldon Jercich (“Plaintiff”) is a former state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds on Plaintiff's Third Amended Complaint. (ECF No. 45). Before the Court are Defendants' motions to dismiss for failure to state facts sufficient to state a claim for relief. (ECF Nos. 46, 47). For the reasons described below, the undersigned will recommend that the motions to dismiss be granted.

         I. BACKGROUND

         Plaintiff filed the Complaint commencing this action on January 5, 2018. (ECF No. 1). On March 2, 2018, Plaintiff filed a motion for leave to file a First Amended Complaint (“FAC”) along with a FAC. (ECF No. 19). On March 5, 2018, Plaintiff requested leave to file a Second Amended Complaint (“SAC”). (ECF No. 20). On March 6, 2018, Plaintiff lodged the SAC. (ECF No. 21). On March 8, 2018, the Court granted Plaintiff's motion to file the SAC. (ECF No. 22).

         Two motions to dismiss the SAC were filed. (ECF Nos. 33, 38). On November 29, 2018, the Court granted Plaintiff's motion to file a Third Amended Complaint. (ECF No. 43). Accordingly, the pending motions to dismiss were denied as moot. (ECF No. 44). On January 4, 2019, Plaintiff filed the Third Amended Complaint (“TAC”). (ECF No. 45).

         On January 17, 2019, Defendants California Department of Corrections and Rehabilitation (“CDCR”), Alfaro, Cimental, Hill, Kernan, Ortega, Owolabi, Smith, Sullivan, Wood, and Zollinger (collectively “CDCR Defendants”) filed a motion to dismiss the TAC for failure to state a claim. (ECF No. 46). CDCR Defendants argue that the TAC “contains few to no specific factual allegations against any of the Defendants” and the “factual allegations that are present are insufficient to state any claim for relief.” (ECF No. 46-1 at 2).[1]

         On January 24, 2019, Defendants Steven Yaplee, M.D. and George Yaplee Medical Center, Inc., dba Triangle Eye Institute filed a motion to dismiss the TAC for failure to state a claim. (ECF No. 47). Therein, Defendants argue “[t]here are essentially no factual / substantive allegations of civil rights violations or even professional negligence against the moving Defendants, and the factual allegations that are present are insufficient to state any claim for relief against moving defendants.” (ECF No. 47-1 at 3).

         Plaintiff filed oppositions to the motions to dismiss, and CDCR Defendants filed a reply. (ECF Nos. 49-51).

         II. SUMMARY OF PLAINTIFF'S THIRD AMENDED COMPLAINT

         Plaintiff was processed at North Kern State Prison (“NKSP”) on June 26, 2014, and when asked, he showed Receiving and Release (“R&R”) personnel his identifying documents that indicated Plaintiff was seventy-five years old. (ECF No. 45 at 4). Upon Plaintiff's arrival at NKSP, “he was wearing his own ‘non-weaponizable,' size 15, black canvas, near-new shoes, ” but Plaintiff was forced to throw them away. Instead, NKSP R&R personnel issued Plaintiff a pair of size twelve slippers and told Plaintiff to fold down the backs of the slippers when Plaintiff complained they were too small. (Id. at 7-8). Plaintiff wore the size twelve slippers for approximately three months until he was able to trade slippers with another prisoner that fit better but were still too small. During Plaintiff's nineteen months in custody, Plaintiff lost at least three toenails. For nearly three years after Plaintiff's release, Plaintiff had one partial and blackened toenail that would not grow back properly. (Id. at 8).

         After a review of Plaintiff's papers, NKSP personnel placed Plaintiff in “mainline” housing despite his elder abuse conviction. (ECF No. 45 at 14-15). Plaintiff was assigned bunk 72-L, which had been previously occupied by “Kory, ” a white inmate between twenty-five to thirty-five years old who had “KORY” tattooed on his stomach. Kory informed Plaintiff that it was customary for new inmates to show their papers to the leader in the area, and the two exchanged papers. (ECF No. 45 at 15). When Kory saw Plaintiff's elder abuse conviction, Kory “stated he had to show the papers to the ‘White Shot-caller.'” (Id. at 16). Kory took Plaintiff's papers and returned ten minutes later, informing Plaintiff, “Everything is cool.” (Id.). Although Plaintiff offered to further explain his conviction to the shot-caller, Kory said it would not be necessary. Plaintiff then fell asleep for an hour or two. (Id.).

         When Plaintiff awoke, he was attacked from behind and struck on the head seven times. Plaintiff was temporarily knocked out. A guard then told Plaintiff to gather his belongings because he was going to “Medical.” (ECF No. 45 at 16). As he was leaving, Plaintiff heard Kory shout words to the effect of, “Get out of here, they are going to kill you.” (Id. at 17). A CDCR sergeant[2] appeared and told Plaintiff to follow him. Plaintiff was led to a nearby medical facility where Plaintiff was told to lie down on a hospital-type bed and a female nurse inspected him. Plaintiff alleges that his two front teeth were “severely loosened” and that he knew he had a concussion. However, the nurse and Defendant Smith, who was present for the inspection, ignored Plaintiff's request for a concussion examination. (Id. at 17).

         Defendant Smith then placed Plaintiff in a “phone-booth-sized” holding cell where Plaintiff had to stand. (ECF No. 45 at 18). Plaintiff demanded he be examined for a concussion and informed the sergeant that his vision was blurry. Defendant Smith refused Plaintiff's attempts to get a concussion inspection and told Plaintiff that he was not experiencing blurry vision but that it only appeared so because Plaintiff was looking through “expanded metal.” (Id.). When Plaintiff told Smith he wished to press charges against Kory and the assailant, the sergeant told him that it would be impossible to determine who beat Plaintiff and that Kory was not involved. (Id. at 18-19). Plaintiff remained in the holding cell for approximately a half hour and was later transferred to “C-W, ” a Special Needs Yard (“SNY”) dorm. (Id. at 19). Although things went well in the SNY dorm, Plaintiff was not clear-headed for two to three days and he did not feel well for a couple of weeks. (Id. at 20).

         In mid-July 2014, Correctional Captain Ortega interviewed Plaintiff regarding the incident for a half hour. Defendant Ortega then asked Plaintiff to sign a letter asking to be placed in SNY, where Plaintiff already was. (ECF No. 45 at 20).

         To Plaintiff's knowledge, during Plaintiff's stay at NKSP Correctional Officer Zollinger was the regular second watch staff member in charge of dorm “C-W.” When Plaintiff informed Defendant Zollinger that he was thinking of complaining about R&R and Sergeant Smith to the warden, Zollinger advised Plaintiff not to file a 602 grievance[3] with the warden, but to send a “Request” to Zollinger. (ECF No. 45 at 21). Although Plaintiff followed Zollinger's advice, Plaintiff believes it was in error because: Plaintiff was never evaluated for the prolonged effects from the concussion he sustained on June 26, 2014; he had no proper shoes; to Plaintiff's knowledge, Sergeant Smith was not reprimanded and R&R personnel were not told to correct their flawed procedures; and Plaintiff's civilian clothes (which disappeared from R&R) and shoes were never returned. (Id. at 21-22).

         Plaintiff alleges that “each and every time Plaintiff filed an Inmate/Parolee Appeal (Form 602)”-whether regarding his civilian clothing and shoes, his beating, or subsequent medical issues-said grievances “were grossly mishandled or ignored or both.” (ECF No. 45 at 23).

         Plaintiff asserts that the CDCR failed to provide proper medical attention to Plaintiff's needs, including the possibility of prostate cancer. (ECF No. 45 at 24). Upon his entry into CDCR's custody, Plaintiff had thyroid, prostate, high blood pressure, and cholesterol issues, all of which required special attention and medication. (Id. at 7). Plaintiff alleges that despite knowing Plaintiff's advanced age and enlarged prostate issues, the CDCR failed to test him for prostate cancer during his incarceration, leading Plaintiff to develop late-stage cancer in his prostate that required forty radiation treatments after he was released. (Id. at 7).

         Plaintiff further asserts that he was not offered proper and timely dental care. (ECF No. 45 at 24). Plaintiff attempted to save the two teeth that were severely loosened during his June 26, 2014 attack by “taking intensive care of them for over a year, ” but eventually pulled them out in the third quarter of 2015 “when it became obvious to him the teeth were not going to naturally tighten.” (ECF No. 45 at 25). When Plaintiff sought assistance with his teeth, Plaintiff was informed that he would have to wait until he was assigned to his “endorsed” prison stop before he could receive assistance. At the California Correctional Institution (“CCI”) in Tehachapi, Plaintiff was offered a root canal procedure. Plaintiff questioned the dental staff regarding the root canal as he believed the proper care should have included pulling out the two teeth and being provided a partial plate. (Id.). Plaintiff believed that the staff, despite knowing that the partial plate procedure was correct and necessary, wished to perform the root canal because the procedure could be done at the prison while a partial plate procedure would have to be performed outside the prison by a contract dentist. Plaintiff alleges that the dental facility supervisor, Bonnie Cimental, was part and party to these conversations and decisions. (Id. at 25-26).

         While at NKSP, Plaintiff elected to undergo cataract removal and corrective implant surgery after reading literature at the medical facility that Dr. Steven M. Yaplee, a Board-Certified Ophthalmologist at the Triangle Eye Institute, offered inmates free cataract removal and correction implant surgery. (ECF No. 45 at 26-27). The first procedure was performed on Plaintiff's right eye in late 2014 at the Triangle Eye Institute facility in Delano while Plaintiff was housed at NKSP. The second procedure was performed in early 2015 while Plaintiff was housed at CCI. Although Plaintiff initially was satisfied with the results of the operations, Plaintiff subsequently began to experience some discomfort in his left eye in late 2015. Plaintiff's multiple appeals to see Dr. Yaplee were ignored by prison personnel. (Id. at 27-28).

         Plaintiff was released from prison on January 7, 2016. Approximately six months thereafter Plaintiff attempted to telephonically contact Dr. Yaplee. Plaintiff called Defendant Yaplee's Delano office twice, informing the receptionist that he had two surgeries while incarcerated and that the vision in his left eye had deteriorated and was causing him issues particularly while reading or working at his computer. Plaintiff asked to see Defendant Yaplee again to have his left eye reevaluated and corrected. (ECF No. 45 at 28). The receptionist informed Plaintiff that he could not visit the doctor unless Plaintiff paid a fee. Plaintiff protested, stating that he was not asking for “new work” but rather “for the doctor to correct the work he had already done.” (Id. at 29). In late 2017, Plaintiff passed through Delano and Bakersfield on his vacation to the Grand Canyon. He stopped at Defendant Yaplee's Delano office and met with the receptionist he previously spoked with on the telephone. The receptionist asked to see Plaintiff's insurance information and informed Plaintiff that his State-paid insurance was only good in Central California and that Dr. Yaplee only accepted said insurance from parties living in the more southern districts in which the doctor's offices were located. (ECF No. 45 at 29).

         Plaintiff learned from the receptionist that Defendant Yaplee's wife worked as the head administrative employee in the Bakersfield office. (ECF No. 45 at 29). Plaintiff talked with Mrs. Yaplee on the telephone, informing her that he was having blurred vision in his left eye and “wanted Dr. Yaplee to look at it, and do whatever was necessary, at the doctor's cost, to correct the work he had done.” (Id. at 30). Mrs. Yaplee informed Plaintiff that if he wished to see Dr. Yaplee, he would have to pay a fee. This was the last contact Plaintiff attempted with Defendant Yaplee's office. (Id.).

         Plaintiff has seen two ophthalmologists in Merced. (ECF No. 45 at 30). One of the ophthalmologists evaluated Plaintiff, noting that Plaintiff has a “cloudy” condition behind the implanted lens in his left eye that needs correction and a minor amount of cloudiness behind the implanted lens in his right eye. (Id. at 31).

         III. LEGAL STANDARDS

         A. Motion to Dismiss

         In considering a motion to dismiss, the Court must accept all allegations of material fact in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro se pleadings “must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

         A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer, 416 U.S. at 236.

         The first step in testing the sufficiency of the complaint is to identify any conclusory allegations. Iqbal, 556 U.S. at 679. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. at 555). “[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations and quotation marks omitted).

         After assuming the veracity of all well-pleaded factual allegations, the second step is for the court to determine whether the complaint pleads “a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556) (rejecting the traditional 12(b)(6) standard set forth in Conley, 355 U.S. at 45-46). A claim is facially plausible when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The standard for plausibility is not akin to a “probability requirement, ” but it requires “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

         In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials outside the complaint and pleadings. Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Gumataotao v. Dir. of Dep't of Revenue & Taxation, 236 F.3d 1077, 1083 (9th Cir. 2001).

         B. Supervisory Liability

         Supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisory position, the causal link between him and the claimed constitutional violation must be specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a claim for relief under § 1983 based on a theory of supervisory liability, Plaintiff must allege some facts that would support a claim that the supervisory defendants either: personally participated in the alleged deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated or “implemented a policy so deficient that the policy ‘itself is a repudiation of constitutional rights' and is ‘the moving force of the constitutional violation.'” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). For instance, a supervisor may be liable for his “own culpable action or inaction in the training, supervision, or control of his subordinates, ” “his acquiescence in the constitutional deprivations of which the complaint is made, ” or “conduct that showed a reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (internal citations, quotation marks, and alterations omitted).

         C. Eighth Amendment

         1. Conditions of Confinement

         “It is undisputed that the treatment a prisoner receives in prison and the conditions under which [the prisoner] is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan, 511 U.S. 825, 832 (1994). Conditions of confinement may, consistent with the Constitution, be restrictive and harsh. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other ...


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