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Outman v. Paramo

United States District Court, S.D. California

November 5, 2019

ROBERT H. OUTMAN, CDCR No. P-79939, Plaintiff, .
v.
DANIEL PARAMO, Warden; S. SANCHEZ, Captain; WILLIAMS, Correctional Counselor; C. YORK, CC M. VILLATUERLE, CCII; B. VOGEL CCI, B. OLIVARRIA, Appeals Coordinator; B. SELF, Appeals Coordinator; K. RODRIGUEZ, Psychologist; and S. BAHRO, Ph. D Psychologist, Defendants.

          REPORT AND RECOMMENDATION RE DEFENDANTS' MOTION TO DISMISS [DOC. NO. 22.]

          Hon. Karen S. Crawford United States Magistrate Judge

         Plaintiff Robert H. Outman, proceeding pro se and currently incarcerated at the California Health Care Facility in Stockton, California, filed this civil rights action pursuant to 42 U.S.C."§ 1983 in the Eastern District of California on August 27, 2018. [Doc. No. 1.] The case was later transferred to this Court. [Doc. No. 7.]

         Before the Court is a Motion to Dismiss the Complaint by defendants Vogel, Olivarria, Bahro, Searles (formerly Sanchez), Rodriguez, Self, Paramo, Villafuerte, and York [Doc. No. 22];[1] plaintiffs Opposition to defendants' Motion to Dismiss [Doc. No. 29]; and defendants' Reply to plaintiffs Opposition [Doc. No. 31]. For the reasons outlined below, IT IS RECOMMENDED that the District Court GRANT defendants' Motion to Dismiss as to all defendants and causes of action with leave to amend.

         Background

         Plaintiff claims that prison officials at Richard J. Donovan Correctional Facility ("RJD") were deliberately indifferent when they failed to follow doctors' recommendations excluding him from dormitory housing and to provide him with fair process to challenge decisions by prison officials to clear him for dormitory housing. [Doc. No. 1, at pp. 1, 25.] The Complaint alleges plaintiff was diagnosed and treated in a psychiatric hospital for Post-Traumatic Stress Disorder (PTSD) after he sustained gunshot wounds to his left hip and right elbow during a work-related incident. He was later incarcerated for a criminal offense. [Doc. No. 1, at pp. 1, 4.] While incarcerated at Mule Creek in 2008, plaintiff claims he suffered a heart attack and was then ordered into dormitory housing "against recommendations of [a] psychologist." [Doc. No. 1, at p. 4.] Thereafter, the Warden issued a letter excluding plaintiff from "dorm-type housing" based on a doctor's recommendation. [Doc. No. 1, at p. 5.] Plaintiff had another heart attack in July 2016 and was prescribed with a wheelchair because of heart disease and other health issues. He remained "cell housed" at Mule Creek until August 2016, but he was then transferred to the RJD, because Mule Creek is "not wheelchair compatible." [Doc. No. 1, at p. 5.] RJD was able to accommodate plaintiffs need for cell housing and wheelchair compatibility. [Doc. No. 1, at p. 5.]

         Dormitory Exclusion Documents from Mule Creek.

         In support of his assertion he was medically excluded from dormitory housing at Mule Creek, plaintiff attached several documents as exhibits to his Complaint:

         (1) A letter signed by Melvin Macomber, Ph.D., on September 1, 2008 concluding based on his evaluation and psychological testing that a dormitory setting would not be appropriate for plaintiff because of his serious physical limitations (i.e., a prosthetic hip and a crippled arm from his involvement in a shooting incident while he was a deputy sheriff) and because "he has a serious case of PTSD from this shooting." [Doc. No. 1, at p. 33.] According to Dr. Macomber, plaintiff cannot cope with noise, crowds, or confusion. As a result, he will not go to the dining hall for his meals and lives on food purchased from the canteen. It was Dr. Macomber's opinion that plaintiff would be unable to tolerate the noise and confusion of a dormitory setting as he would be unable to sleep, would become severely anxious, and "would become a psychological and medical liability (he has high blood pressure)." [Doc. No. 1, at p. 33.]

         (2) A report signed on December 4, 2015 from Wendy S. Weiss, Ph.D., Forensic Psychologist, Board of Parole Hearings/Forensic Assessment Division, California Department of Corrections and Rehabilitation ("CDCR"). This report states that plaintiff has ongoing symptoms that, meet the criteria for post-traumatic stress disorder. The symptoms include avoidance of large crowds and a startle response to various stimuli, including the sound of gunshots and radios. [Doc. No. 1, at pp. 35-36.]

         (3) A letter written by Dr. Macomber on January 20, 2016 and addressed to Associate Warden D. Lory. In this letter, Dr. Macomber states that he has known plaintiff since 2008, when he was moved to a dormitory setting "which resulted in serious trauma and impaired health." [Doc. No. 1, at p. 34.] Because of the serious physical injuries mentioned in his prior letter, Dr. Macomber stated plaintiff would be unable "to crawl into the confined space of a dormitory bunk." [Doc. No. 1, at p. 34.] In addition, Dr. Macomber stated plaintiff has PTSD and "experiences panic attacks when he is around crowds, noise, radio static sounds, and disturbances that occur regularly in the dormitory setting." [Doc. No. 1, at p. 34.] Dr. Macomber therefore stated as follows: "To move [plaintiff] into a dormitory at his age and impaired health would be in his case fatal in my opinion." [Doc. No. 1, at p. 34.]

         (4) A CDCR form entitled Mental Health Interdisciplinary Treatment Team, . Housing/Program Recommendation. The form was signed on March 3, 2016, by several individuals, including a psychiatrist, a team leader, and the Chief of Mental Health. [Doc. No. 1, at p. 31.] The following is handwritten on the form: "Dorm exclusion based on 1/20/16 letter written to [Associate Warden] D. Lory by M. Macomber, Ph.D." [Doc. No. 1, atp. 31.]

         First Classification Hearing at RJD. On November 30, 2016, after plaintiff was transferred to RJD, he was called to a Unit Classification Committee hearing. Defendant Sanchez, a captain, chaired the hearing, and defendant Vogel attended. Plaintiff claims he attempted to introduce his documents showing he should be excluded from dormitory housing but was told his documentation was "of no value," and he would be transferred to dormitory housing. [Doc. No. 1, atp. 6.]

         Plaintiff attached the "Classification Committee Chrono" from the November 30, 2016 hearing to his Complaint. [Doc. No. 1, at pp. 38-39.] This form states plaintiff said he did not wish to transfer to "RJD Facility E," because he does not want to be housed in a dormitory setting. Plaintiff explained that he suffers from PTSD and "dorm living makes his condition worse." [Doc. No. 1, at p. 38.] However, the form states he was cleared for "dorm and double cell living." [Doc. No. 1, atp. 38.]

         After the Classification Committee's recommendation was made, plaintiff challenged the recommendation by pursuing a CDCR 602 inmate appeal. The Complaint alleges plaintiff encountered many obstacles and delays in pursuing his CDCR 602 appeal. [Doc. No. 1, at pp. 6-11.] For example, an exhibit to the Complaint indicates this appeal was rejected at the first level on March 1, 2017, because plaintiff did not submit "necessary supporting documents" (i.e., "a copy of [the] UCC Action dated 11/30/16, with auditor action"). However, plaintiff alleges his attempts to obtain a copy of these supportings documents were "ignored" and/or delayed. [Doc. No. 1, at pp. 6-8, 58.]

         Plaintiff also challenged the Classification Committee's recommendation by sending correspondence to RJD's warden, defendant Paramo, and to RJD's Mental Health Department. [Doc. No. 1, at p. 6-7, 47, 48, 52.] On December 4, 2016, plaintiff completed a form requesting mental health care services. [Doc. No. 1, at pp. 6, 46.] He then had a consultation on December 9, 2016 with E. Rodriguez, who agreed that plaintiff should not be placed in dormitory housing based on the recommendations from Mule Creek. However, E. Rodriguez told plaintiff that he did not have the authority to "generate a chrono" to this effect. E. Rodriquez did agree to make a telephone call to defendant Williams about the matter and advised plaintiff to show his documentary evidence to defendant Williams.[2] [Doc. No. 1, at p. 50.]

         On December 11, 2016, plaintiff had a second consultation with E. Rodriguez, who reported to plaintiff that he had a telephone conversation with Dr. Sato from RJD Mental Health, but Dr. Sato indicated plaintiffs documents were "of no value" because they came from a different facility (i.e., Mule Creek). The form indicates that E. Rodriguez told plaintiff he would not be given a dormitory housing exclusion, but he could submit a CDCR 602 inmate appeal in the event he was placed in dormitory housing and did not like the placement [Doc. No. 1, at p. 51.]

         In a letter dated December 28, 2016, defendant Paramo (warden) responded to plaintiffs correspondence of December 6, 2016. [Doc. No. 1, at pp. 6, 8.] A copy of this letter is attached to the Complaint as an exhibit. [Doc. No. 1, at pp. 56-67.] Defendant Paramo's letter explains that the November 30, 2016 Classification Committee recommended plaintiff "be retained at [R]D], Facility B, and for [his] case to be referred to [R]D's] Mental Health Department for evaluation with regards to Dormitory Housing." [Doc. No. 1, at p. 56 (emphasis added).] Defendant Paramo's letter further states that plaintiffs "transfer is under review and [his] case will be returned to the assigned counselor, pending mental health evaluation and/or for further action." [Doc. No. 1, at p. 56.] In addition, defendant Paramo's letter states that the Classification Committee's recommendations would be reviewed by the Classification and Parole Representative (C&PR), who would "make the final determination" as to where plaintiff could be housed based on the facts and circumstances of his case. [Doc. No. 1, at p. 56.]

         On March 1, 2017, plaintiffs CDCR 602 inmate appeal was rejected for failure to submit supporting documents, so plaintiff addressed a CDCR 22 request to defendant York on March 4, 2017, asking for a copy of the "UCC ACTION DATED 11/30/16, with auditor action." [Doc. No. 1, at p. 59.] Plaintiff made a second CDCR 22 request to defendant York on March 13, 2017. [Doc. No. 1, at p. 65.] Since he had not received a response, plaintiff sent a CDCR 22 request entitled "unanswered CDCR 22's" to York's supervisor on March 21, 2017. [Doc. No. 1, at p. 67.]

         Next, defendant York provided a response dated March 28, 2017, which states "see attached." [Doc. No. 1, at p. 64.] However, it appears the attachment was only a copy of the November 30, 2016 Classification Committee Chrono without the requested documentation about any "auditor action." [Doc. No. 1, at pp. 64-66.] A second "staff response" to plaintiffs March 4, 2017 CDCR request is dated April 20, 2017, and it states as follows: "Your case was finalized and you wilt not be referred for transfer at this time. No auditor action took place." [Doc. No. 1, at p. 59 (emphasis added).] Finally, plaintiff received a response to his March 21, 2017 CDCR 22 addressed to defendant York's supervisor informing him that his concerns had been addressed. [Doc. No. 1, at pp. 10, 67.]

         Second Classification Hearing at RJD. On November 1, 2017, the Complaint alleges plaintiff was "summoned" to a second Classification Committee hearing, which was attended by defendant Searles (formerly Sanchez) and defendant York. Plaintiff claims he gave these defendants copies of his Petition for Clarification and Due Diligence, dated October 25, 2017. In his Petition, plaintiff objected to any transfer to dormitory housing based on prior findings and recommendations indicating dormitory housing is "toxic" to plaintiffs health because of his advanced age and declining health. [Doc. No. 1, at pp. 10-11, 63.] Plaintiff does not believe his Petition was considered. Instead, defendant York read from a prepared statement indicating plaintiff had been cleared ...


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