United States District Court, S.D. California
ROBERT H. OUTMAN, CDCR No. P-79939, Plaintiff, .
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.]
Karen S. Crawford United States Magistrate Judge
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.]
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.
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.
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.]
Exclusion Documents from Mule Creek.
support of his assertion he was medically excluded from
dormitory housing at Mule Creek, plaintiff attached several
documents as exhibits to his Complaint:
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.]
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.]
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.]
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.]
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.]
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.]
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.]
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. [Doc. No. 1, at
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.]
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.]
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.]
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.]
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 ...