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Silverman v. Ivers

United States District Court, N.D. California

November 4, 2019

JACOB S. SILVERMAN, Plaintiff,
v.
IVERS, et al., Defendants.

          ORDER DENYING MOTIONS TO AMEND CLAIMS AND DEFENDANTS; DENYING MOTION TO STRIKE AFFIDAVIT; GRANTING MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION; DIRECTING DEFENDANTS TO FILE REPLY (DOCKET NOS. 84, 87, 90, 91, 97)

          BETH LABSON FREEMAN United States District Judge

         Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against staff at the Humboldt County Correctional Facility (“HCCF”). The Court found the second amended complaint, (Docket No. 12, hereinafter “SAC”), stated a cognizable Eighth Amendment claim for deliberate indifference to serious medical needs, and ordered the matter served on Defendants. (Docket No. 18.) Defendants Dean Flint and Duane Christian filed a motion to dismiss the claims against them for failure to plead sufficient facts to establish liability. (Docket No. 33.) The Court granted the motion but with leave to amend for Plaintiff to attempt to provide sufficient facts to support a claim against Defendants. (Docket No. 82.) Plaintiff filed an amendment, as well as several other motions. The Court will conduct an initial review of the amendment and address the pending motions below.

         DISCUSSION

         A. Motion to Amend Claims Against Defendants Flint and Christian

         In response to the Court's Order Granting Defendants' Motion to Dismiss, Plaintiff filed an amendment which was docketed as a motion for leave to amend, (Docket No. 84, ) along with exhibits, (Docket No. 84-1). Defendants filed an opposition to the “motion, ” (Docket No. 85), and Plaintiff filed a reply, (Docket No. 89).

         Plaintiff claims that he is a pretrial detainee, and that there is a showing of Defendants Christian and Flint “committing deliberate indifference per Eighth Amendment standards as an affirmative link between the constitutional deprivation.” (Docket No. 84 at 1.) Plaintiff asserts that the “affirmative link” is Defendants' “improper control, and, failure to supervise, and Mis-use [sic] of the grievance process, under the equal protection clause and due process rights.” (Id. at 2.) Plaintiff claims that his medical condition, i.e., his “axonal ulnar neuropathy (Nerve Damage)” and carpal tunnel syndrome, was “known to them all.” (Id.) Plaintiff alleges that Defendant Flint was in a “final decisional position to authorize the treatment to be continued and to allow effective pain relief” and that his failure to do so was “improper control and failure to supervise.” (Id.) Plaintiff asserts that Defendant Flint knew of his “serious and obvious medical condition” and did not reasonably take available measures medically and chose to allow Plaintiff to remain in pain. (Id.) Plaintiff claims that Defendant Christian oversaw the follow up grievances and “blocked” Plaintiff from using the grievance process to grieve Defendant Flint's improper denial of his medical needs. (Id. at 3.) Plaintiff alleges that both Defendants “displayed improper control, failure to supervise, deliberate indifference, retaliation, [and] reckless disregard.” (Id. at 4.) Plaintiff claims that Defendants “conspired with all medical staff involved to totally ignore the Neurologist's findings and intentionally, deliberately, unprofessionally, unlawfully, contrary to policy of standards of care in the community, did willfully, sadistically, maliciously, oppressively, unconstitutionally deny obvious and serious human conditions requirement medical treatment and effective pain relief.” (Id. at 6.) In support, Plaintiff provides copies of twenty-three grievances he filed; the first grievance is dated April 19, 2017, and the last is dated October 9, 2018. (Ex. 8, Docket No. 84-1 at 14-36.) Not all the grievances were accepted as some were rejected as “frivolous, ” but where there was a written response at the third and final level of response, it was by either by Defendant Flint or Defendant Christian. (Id.)

         In opposition, Defendants assert that this proposed amendment fails to set forth any new facts but merely consists of the relevant legal authority applicable to Plaintiff's claim and conclusory arguments that his claim has support. (Docket No. 85 at 2.) Defendants argue that Plaintiff merely “repackaged” the same conclusory allegations from his SAC, and that he is still missing facts to establish that Defendant Christian and Flint knew of the seriousness of Plaintiff's medical condition and still denied him medical care. (Id. at 3-4, original emphasis.) In reply, Plaintiff asserts that he has “sufficiently submitted supportive facts that involve the criteria to hold the aforenoted defendants liable for their involvement that the paper-trail displays of record(s) toward substantial medical care, deprivation of medical treatment and effective and proper pain relief - which violates the 14th and 8th Amendments of the United States Constitution's protection.” (Docket No. 89 at 1.)

         Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93 (2007). “Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Id. (internal citations omitted). See, e.g., Byrd v. Phoenix Police Dep't, 885 F.3d 639, 642-43 (9th Cir. 2018) (disagreeing with district court that plaintiff's allegations that police officers “beat the crap out of” him was too vague and conclusory to support a legally cognizable claim; plaintiff's use of a colloquial, shorthand phrase made plain that he was alleging that officers' use of force was unreasonably excessive and allegations about resulting injuries reinforced this conclusion). However, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). To state a claim that is plausible on its face, a plaintiff must allege facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (finding under Twombly and Rule 8 of the Federal Rules of Civil Procedure, that complainant-detainee in a Bivens action failed to plead sufficient facts “plausibly showing” that top federal officials “purposely adopted a policy of classifying post-September-11 detainees as ‘of high interest' because of their race, religion, or national origin” over more likely and non-discriminatory explanations).

         From the foregoing decisions, the following “two principles” arise: “First to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011); see, e.g., AE v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (applying Starr standard to pleading policy or custom for claims against local government entities); see also McHenry v. Renne, 84 F.3d 1172, 1177-78 (9th Cir. 1996) (a complaint must make clear “who is being sued, for what relief, and on what theory, with enough detail to guide discovery”).

         A claim for a violation of a pretrial detainee's right to adequate medical care arises under the Fourteenth Amendment rather than the Eighth Amendment. See Gordon v. County of Orange, 888 F.3d 1118, 1122 & n.4 (9th Cir. 2018). The claim is evaluated under an objective deliberate indifference standard.

[T]he elements of a pretrial detainee's medical care claim against an individual defendant under the due process clause of the Fourteenth Amendment are: (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved-making the consequences of the defendant's conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff's injuries.

Id. at 1125. With regard to the third element, the defendant's conduct must be objectively unreasonable -- “a test that will necessarily turn[] on the facts and circumstances of each particular care.” Id. (citations and internal quotation marks omitted). The four-part test articulated in Gordon requires the plaintiff to prove more than negligence, but less than subjective intent --something akin to reckless disregard. Id.

         After reviewing the amendment and the attached grievances, the Court finds Plaintiff has failed to set forth sufficient factual allegations to support a Fourteenth Amendment claim for inadequate medical care. Plaintiff's six-page amendment is mostly a recitation of applicable caselaw and legal citations with intermittent conclusory allegations regarding Defendants' actions. (Docket No. 84 at 1-6.) For example, Plaintiff alleges the “affirmative link to deliberate indifference and/or reckless disregard by both [Defendants] is their improper control, and, failure to supervise, and, Mis-use of the grievance process, under the equal protection clause and due process rights.” (Id. at 3.) However, Plaintiff provides no underlying facts to support this allegation. Specifically, Plaintiff fails to provide any facts explaining what authority Defendants had in their control and how they improperly exercised it; he fails to name the subordinates whom Defendants failed to supervise or describe the allegedly unlawful actions of the subordinates for which Defendants are liable as supervisors; and lastly, Plaintiff fails to explain how Defendants misused the grievance process. To the extent that Plaintiff relies on the copies of the grievances to establish a “paper-trail” of Defendants' unlawful conduct, these documents fail to establish such conduct. The Court summarizes these grievances as follows:

• Grievance dated April 19, 2017: Plaintiff complained of being denied pain medication by Dr. Ivers on April 6, 2017. (Docket No. 84-1 at 14.) The first level response by Nurse April stated that the jail was “actively working on a referral to specialist for your pain in your arm, ” and that although the jail does not routinely prescribe pain medication, Plaintiff could obtain over the counter pain relief by placing a sick call slip to discuss the matter. (Id.) Plaintiff pursued the matter to the third level, where Defendant Christian responded that “[m]edical staff will continue to schedule you for appointments as the doctor deems necessary. As with any referrals the appointments may take time to get.” (Id.)
• Grievance dated May 10, 2017: Plaintiff alleged that “Lt. Christian was delaying my ability to receive an expedited appointment for pain and treatment for a follow-up appointment from neurology.” (Id. at 15.) The first level response stated that “schedules for appointments are made by transportation. The impedance would be w/transport and the medical facility your appointment is to, not the Lieutenant.” (Id.) Plaintiff did not pursue this grievance any further. (Id.)
• Grievance dated May 22, 2017: this grievance was rejected because Plaintiff did not “write in space allowed or additional pages”; there is no indication who made the decision to reject the grievance. (Id. at 16.)
•Grievance dated May 24, 2017: this grievance was rejected because Plaintiff was requesting copies of his medical records, and there was a separate process for getting such records. (Id. at 17.)
• Grievance dated May 23, 2017: Plaintiff complained of the care he received from Dr. Robert Lyell on May 22, 2017. (Id. at 18.) Plaintiff alleges that the doctor walked out on him for refusing wear a brace, and that he did not provide any other medical treatment. (Id.) Plaintiff sought a referral back to a neurologist, rejected the “placebo brace” that was provided to him, and requested a solution for his ongoing pain. (Id.) The first level response by Nurse April stated that all appropriate procedures were followed in getting Plaintiff to see a specialist, who had made recommendations to Plaintiff to alleviate the pain which Plaintiff refused to do, i.e., wear a brace. (Id.) At the third level response, Defendant Flint stated that “[n]o pain medication is going to be prescribed [and] a brace has been ordered.” (Id.)
• Grievance dated June 7, 2017: Plaintiff complained that Dr. Ivers, Dr. Borelson, Nurse April, and Lt. Flint were “conspiring to keep [him] suffering in pain” from an injury on December 22, 2016. (Id. at 19.) The grievance was rejected as “frivolous” and ...

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