United States District Court, E.D. California
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)
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
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).
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).
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
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).
filed oppositions to the motions to dismiss, and CDCR
Defendants filed a reply. (ECF Nos. 49-51).
SUMMARY OF PLAINTIFF'S THIRD AMENDED COMPLAINT
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).
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.
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 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).
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).
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
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 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).
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).
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).
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).
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
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).
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.).
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).
Motion to Dismiss
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).
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.
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
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.
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).
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).
Conditions of Confinement
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 ...