United States District Court, C.D. California, Western Division
ORDER DISMISSING COMPLAINT WITH LEAVE TO
DOUGLAS F. McCORMICK, UNITED STATES MAGISTRATE JUDGE.
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.(“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.
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).
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.
SUMMARY OF PLAINTIFF'S ALLEGATIONS
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.
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
Plaintiff Has Failed to State a Claim Against Gastelo in
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.
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).
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.
Plaintiff's claims for damages against Gastelo in her
official capacity ...