Kwon v. Gastelo

          ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

          DOUGLAS F. McCORMICK, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         On November 18, 2019, Plaintiff, a state prisoner currently housed at the California Men's Colony in San Luis Obispo, California, filed this civil rights action under 42 U.S.C. § 1983. See Dkt.^[1](“Complaint”). Plaintiff's Complaint names six people as Defendants: (1) J. Gastelo, Warden, (2) Dr. J. Cruz, (3) Dr. Joseph B. Griffin, (4) Jane Doe, Nurse, (5) Raymond Olivas, Nurse, and (6) S. Gates, Chief of Health Care Appeals. See Complaint at 3-4.1 Plaintiff names Warden Gastelo in her official and individual capacity; the remaining defendants are named in their individual capacity only. See Id. Construed liberally, Plaintiff raises Eighth Amendment inadequate medical care against each of the Defendants and Eighth Amendment sexual assault and Fourteenth Amendment unwanted medical care claims against Dr. Griffin. See id. at 5.

         The Complaint is construed in the light most favorable to Plaintiff and all material allegations are taken to be true. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). A complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This means that the complaint must plead “factual content that allows 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) (quoting Twombly, 550 U.S. at 570).

         “In civil rights cases where the plaintiff appears pro se, the court must construe the pleadings liberally and must afford plaintiff the benefit of any doubt.” Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). “A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Id. Before dismissing a pro se civil rights complaint for failure to state a claim, the district court “must give the plaintiff a statement of the complaint's deficiencies.” Id.

         II. SUMMARY OF PLAINTIFF'S ALLEGATIONS

         On or around December 15, 2017, Plaintiff began filing requests for medical treatment of extreme pain in his lower back, right hip, right leg, and right foot. See Complaint at 5. On or around December 20, 2017, Dr. Cruz was assigned as Plaintiff's primary care provider. See id. at 7. On September 25, 2018, Dr. Griffin told Plaintiff “You should be used to things like this by now!” before performing a rectal exam. See id. The exam was based on a misdiagnosis of Piriformis syndrome. See id. On August 3, 2018, Plaintiff received a pass to the medical department because pain made it impossible to walk to obtain dinner. See id. at 8. Nurse Doe refused to give Plaintiff any treatment and stated Plaintiff would only receive treatment after he submitted a Form 7362. See id. On August 4, 2018, Plaintiff's pain made it impossible to move and so he had to lay on the ground. See id. Officer Gentry issued a Code-1 Medical Emergency, to which Nurse Olivas responded. See id. Nurse Olivas did not give Plaintiff any treatment or offer any guidelines or advice for treatment even after Plaintiff explained he went to the Medical Department seeking treatment the previous day. See id. After Olivas left, several inmates had to carry Plaintiff back to his cell. See id. On August 10, 2018, Gastelo received formal notification that Plaintiff was not receiving medical care for this pain. See id. at 5. On August 7, 2019, Gates denied Plaintiff's grievance appeal. See id. at 8.

         III. DISCUSSION

         Under 28 U.S.C. § 1915A(b), the Court must dismiss the Complaint due to pleading defects. However, the Court must grant a pro se litigant leave to amend his defective complaint unless “it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation and internal quotation marks omitted). For the reasons discussed below, it is not “absolutely clear” that at least some of the defects of Plaintiff's Complaint could not be cured by amendment.

         A. Plaintiff Has Failed to State a Claim Against Gastelo in Her Official-Capacity

         Plaintiff named Gastelo in both her individual and official capacity. An “official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). Such a suit “is not a suit against the official personally, for the real party in interest is the entity.” Id. California Men's Colony is run by the California Department of Corrections and Rehabilitation (“CDCR”). Therefore, Plaintiff's claims against Gastelo in her official capacity is tantamount to claims against CDCR.

         States, state agencies, and state officials sued in their official capacities are not persons subject to civil rights claims for damages under 42 U.S.C. § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 64-66 (1989); see also Hafer v. Melo, 502 U.S. 21, 30 (1991) (clarifying that the Eleventh Amendment does not bar suits against state officials sued in their individual capacities nor for prospective injunctive relief against state officials sued in their official capacities). The CDCR is an agency of the State of California and, therefore, entitled to Eleventh Amendment immunity. See Brown v. Cal. Dep't of Corrs, 554 F.3d 747, 752 (9th Cir. 2009).

         To overcome the Eleventh Amendment bar on federal jurisdiction over suits by individuals against a State and its instrumentalities, either the State must have “unequivocally expressed” its consent to waive its sovereign immunity or Congress must have abrogated it. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99- 100 (1984). California has consented to be sued in its own courts pursuant to the California Tort Claims Act, but such consent does not constitute consent to suit in federal court. See BV Engineering v. Univ. of Cal., L.A., 858 F.2d 1394, 1396 (9th Cir. 1988); see also Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985) (holding that Art. III, § 5 of the California Constitution did not constitute a waiver of the state's Eleventh Amendment immunity). Furthermore, Congress has not abrogated State sovereign immunity against suits under 42 U.S.C. § 1983.

         Accordingly, Plaintiff's claims for damages against Gastelo in her official capacity ...