Bryant v. Atchley

Opinion

FARREN BRYANT, Case No. 21-cv-01347-EMC

Plaintiff, ORDER GRANTING DEFENDANTS’ v. MOTION TO DISMISS IN PART, WITH LEAVE TO AMEND THE M. ATCHLEY, et al., COMPLAINT IN PART Defendants. Docket No. 21

Farren Bryant, an inmate at the California State Prison - Corcoran in Corcoran, California, filed this pro se civil rights action under 42 U.S.C. § 1983. See Docket No. 1 (“Complaint”). This matter is now before the Court for consideration of Defendants’ motion to dismiss the complaint. See Docket No. 21 (“Dismissal Motion” or “MTD”). For the reasons stated below, the Dismissal Motion is granted in part, as to Defendant Atchley, and denied in part, as to Defendant Lam. Also for the reasons stated below, Mr. Bryant is ordered to amend the Complaint to provide more details as to his claim against Defendant Rivera,1 or to notify the Court that he wishes to stand on the Complaint as pleaded. A. Allegations of Complaint Mr. Bryant alleges the following in his Complaint:

1 The Complaint alternately refers to Defendant Rivera and to Defendant Revira. See generally, In 2020, Mr. Bryant was incarcerated in Facility B at Salinas Valley State Prison (“SVSP”). Compl. at 2. On August 10, 2020, Mr. Bryant was jogging around Facility B’s exercise yard when he “stepped [i]n one of many Gopher holes that cover the yard.” Id. at 3.2 Mr. Bryant contends that, prior to his injury, the “gopher holes [] went ignored for years by the defendant Atchley’s assigned ground keepers.” Id. at 11. Mr. Bryant’s “left knee popped, then buckled,” and Mr. Bryant fell. Id. at 3. When Mr. Bryant attempted to get up, “his knee would not support him.” Id. Mr. Bryant sought medical care for his knee injury. See id. Non-defendant Nurse Helen gave Mr. Bryant an ice pack on either the day of his injury or the day after. See id. at 3-4. Two days after his injury, Mr. Bryant again saw Nurse Helen, and expressed concern regarding his injury. See id. at 4. As a result of his expression of concern, Mr. Bryant was given an x-ray three days after his injury. See id. However, Mr. Bryant was not seen by a doctor on this day. See id. On August 14, 2020, four days after his injury, Mr. Bryant’s knee had not improved. See id. On that day, his knee again “buckled and completely gave out.” Id. Mr. Bryant was then given a second x-ray. See id. Defendant Lam reviewed the second x-ray, told Mr. Bryant that the second x-ray did not reveal any fracture of dislocation, and diagnosed a sprain. See id. Defendant Lam did not conduct a physical examination of Mr. Bryant’s knee, even after Mr. Bryant asked Defendant Lam to do so. See id. at 4-5. Defendant Lam prescribed the use of a wheelchair and Tylenol. See id. Mr. Bryant contends that Defendant Lam refused to conduct a physical examination because “defendant Dr. Lam and defendant K. Rivera,” the Chief Medical Officer of SVSP, “were attempting to be cost effective.” Id. at 6. The prescription for Tylenol and wheelchair use did not resolve Mr. Bryant’s pain. See id. at 5. Mr. Bryant could not extend his knee when seated or when lying in a prone position. See id. On August 25, 2020, Mr. Bryant wrote a Healthcare Grievance requesting an MRI, ultrasound, or surgery. See id. His request was denied. See id. at 5-7. On August 30, 2020, and September 10, 2020, Mr. Bryant again requested medical care. See id. at 7. Mr. Bryant was seen by non-defendant Dr. Garcia via Telemed. See id. at 7-8. Dr. Garcia prescribed a wheelchair and physical therapy. See id. On October 7, 2020, non-defendant Dr. Saveri performed a physical examination on Mr. Bryant’s knee and ordered an MRI. See id. at 8-9. The MRI was performed on October 29, 2020. See id. at 9. “The MRI revealed [a] Medial Meniscal Tear, Extensive Quadricep Tendon Tear, and Degeneration with Patellar Spurring and Patellar Tendinitis.” Id. On November 9, 2020, Dr. Saveri referred Mr. Bryant to an orthopedic surgeon. See id. at 9. Mr. Bryant met with the orthopedic surgeon, non-defendant Dr. Lameer, on November 23, 2020. See id. at 10. Dr. Lameer told Mr. Bryant that the three-month delay in seeking surgery had reduced the chance that Mr. Bryant would fully recover from his injury. See id. at 10. Dr. Lameer stated that the surgery should have been performed no later than two weeks after Mr. Bryant’s injury. See id.; see also id., Ex. K (“Suggest repair . . . as soon as possible . . . Delay would only make the procedure more difficult.”). Mr. Bryant eventually was given surgery to repair his knee. See id. at 11. Despite surgery, his “left [knee] will never properly function normal[ly] again.” Id. Mr. Bryant contends that Defendant Atchley violated Mr. Bryant’s Eighth Amendment rights by “allowing for hazardous conditions of Gopher holes” and “fail[ing] to adequately supervise hi[m]self/herself or appoint someone else to supervise the yard’s ground keepers.” Id. at 12. Mr. Bryant contends that Defendants Lam and Rivera were deliberately indifferent to Mr. Bryant’s medical need, in violation of the Eighth Amendment. See id. at 13. B. Procedural History This case originally was assigned to Magistrate Judge Joseph Spero, who reviewed the Complaint under 28 U.S.C. §1915A, which requires the district court to identify any cognizable claims, and to dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Magistrate Judge Spero issued an order of service in which he found that the complaint stated “a cognizable claim for relief against [Defendant] Atchley for violating [Mr. Bryant’s] Eighth Amendment rights by being deliberately indifferent to plaintiff’s safety,” and “a cognizable claim Bryant’s] serious medical needs in violation of his Eighth Amendment rights.” Docket No. 8 at 2- 3. The case was later reassigned to the undersigned when one of the originally named Defendants could not be served, and thus was unable to consent to a magistrate judge presiding over the case. Docket Nos. 17-19. Defendants now move to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Docket No. 21. Defendants move to dismiss this action. See Docket No. 21. Specifically, Defendants argue that Mr. Bryant’s claims against Defendant Atchley fail because Mr. Bryant alleges only that Defendant Atchley failed adequately to supervise the groundskeepers, which is insufficient to support a claim. See id. at 8-11. Defendants also argue that the Complaint improperly joined claims and Defendants, and thus should be dismissed under Federal Rules of Civil Procedure 18 and 20. See id. at 4-8. Defendants make no arguments regarding Defendant Rivera because he has not been served with the Complaint. See generally, id.; see also Docket No. 17 (stating that no one by that name was employed at SVSP). For the reasons stated below, the Court agrees that Mr. Bryant’s claims fail as to Defendant Atchley, and GRANTS Defendants’ request to dismiss Defendant Atchley from this action. Because Mr. Bryant’s claims against Defendant Atchley have been dismissed, the Court finds that Defendants’ joinder arguments are moot, and DENIES the Dismissal Motion as to those arguments. The Court notes that Mr. Bryant’s claims against Defendant Rivera appear to fail for the same reason as his claims against Defendant Atchley: Mr. Bryant alleges no direct involvement from Defendant Rivera in the alleged wrongs, and appears to have named him as a supervisor. The Court thus orders Mr. Bryant to amend his Complaint to identify Defendant Rivera’s direct involvement in the alleged Eighth Amendment violations, or to notify the Court that Mr. Bryant intends to stand on his Complaint as pleaded. If Mr. Bryant chooses the latter, the Court will dismiss Defendant Rivera from this action for the reasons stated below. A. Rule 12(b)(6) Standards Federal Rule of Civil Procedure 12(b)(6) permits a defendant to move to dismiss a complaint on the ground that there is a “failure to state a claim upon which relief can be granted.” A motion to dismiss should be granted if the plaintiff fails to proffer “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating Conley v. Gibson, 355 U.S. 41 (1957)). The Court “must accept as true all of the factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and must construe pro se pleadings liberally, Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010). The Court need not accept as true allegations that are legal conclusions, unwarranted deductions of fact or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988, amended, 275 F.3d 1187 (9th Cir. 2001). B. Mr. Bryant Cannot Sue a Defendant not Personally Involved in the Wrongs Mr. Bryant’s claims against Defendant Atchley fail because Defendant Atchley was not personally involved in the wrongs against Mr. Bryant. Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 only if the plaintiff can show that the defendant’s actions both actually and proximately caused the deprivation of a federally protected right. Lemire v. Cal. Dept. of Corr. & Rehab., 726 F.3d 1062, 1085 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Either personal involvement or integral participation of each defendant in the alleged constitutional violation is required before liability may be imposed. See Jones v. Williams, 297 F.3d 930, 936 (9th Cir. 2002). Even at the pleading stage, “[a] plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights.” Barren, 152 F.3d at 1194. Here, Mr. Bryant fails to identify any personal involvement by Defendant Atchley in the alleged wrongs. See generally, Compl. The Complaint contains only the following allegations against Defendant Atchley: • “Defendant Atchley was at all relevant times the Warden of SVSP, and is sued responsible for the overall operations, functions and maintena[n]ce up-keeping at SVSP.” Id. at 2. • “The defendant Atchley, (et al.), carry the blame of the Gopher holes problem on the Facility B yard at SVSP that caused plain[]tiff’s ‘major’ left knee injury, in violation of the Health and Saf[e]ty Code(s). . . . The hazardous conditions of a recreation yard being riddled with gopher holes that went ignored for years by the defendant Atchley’s assigned ground keepers[] should not have occurred and if the recreation yard was being properly kept then plaintiff would have never suffered a[] knee injury.” Id. at 11. • Defendant Atchley violated Mr. Bryant’s Eighth Amendment rights “by his/her actions of allowing for hazardous conditions of Gopher holes,” and” by his/her failure to adequately supervise hi[m]self/herself or appoint someone else to supervise the yard’s ground keepers.” Id. at 12. None of these allegations suggest that Defendant Atchley was personally responsible for walking the grounds and checking for gopher holes, or even that Defendant Atchley was aware there were gopher holes on the exercise yard of Facility B. Mr. Bryant thus failed to allege facts to show that Defendant Atchley “was personally involved” in causing his gopher hole-induced injury, Barren, 152 F.3d at 1194, and thus has failed to state a claim against Defendant Atchley. To the extent Mr. Bryant intends to sue Defendant Atchley because, as Warden, he may supervise the SVSP groundskeepers, this is impermissible. “In a § 1983 suit . . . masters do not answer for the torts of their servants,” so “each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). Under no circumstances is there liability under section 1983 on the theory that one is responsible for the actions or omissions of another. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“There is no respondeat superior liability under section 1983.”). It is insufficient for a plaintiff generally to allege that supervisors knew about a constitutional violation and that they generally created policies and procedures that led to the violation. See Hydrick v. Hunter, 669 actually maintained the yard, Mr. Bryant’s claim for injury due to the gopher holes lies against the groundskeeping crew, not against Defendant Atchley. Nor would Monell liability be appropriate here. In “limited circumstances,” a municipal policy may be based upon the local government’s decision not to train certain employees about their legal duty to avoid violating citizens’ rights. Connick v. Thompson, 563 U.S. 51 at 61 (2011). The local government’s liability under § 1983 is at “its most tenuous,” however, when the claim is based on a failure to train. Id. Only where a failure to supervise and train reflects a “‘deliberate’ or ‘conscious’ choice’” by a local government can the “shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under § 1983.” City of Canton v. Harris, 489 U.S. 378, 389 (1989). For Monell liability to be based on a failure to train, constitutional violations must be “so predictable” that the failure to train amounts to a “conscious disregard” for those constitutional rights. Connick, 563 U.S. 51 at 71 (emphasis in original). Thus, evidence of the failure to train a single employee is ordinarily insufficient to establish that the failure to train was a municipality’s deliberate policy. Id. at 66 (evidence of a single Brady violation insufficient to establish policy, notwithstanding four other Brady violations in past ten years by same prosecutor’s office because they did not involve the failure to turn over the same type of evidence to the defense); Blankenhorn v. City of Orange, 485 F.3d 463, 484-85 (9th Cir. 2007) (absent evidence of a ‘program-wide inadequacy in training,’ any shortfall in a single officer’s training was classified as negligence rather than deliberate indifference, therefore plaintiff did not meet his burden to withstand summary judgment). An inadequate training policy cannot be inferred from a single incident. Hyde v. City of Wilcox, 23 F.4th 863, 875 (9th Cir. 2022). Here, there are no allegations that any other prisoner had ever been injured in the gopher holes, and so Mr. Bryant would have the Court infer a failure-to-train based on a single incident, which is impermissible. See id. There also are no facts to show a system-wide failure to train groundskeepers to fill in gopher holes, which again makes Monell liability inappropriate. See Blankenhorn, 485 F.3d at 484-85. Finally, even if Mr. Bryant had presented such evidence, there is no showing that Defendant Atchley was directly and personally responsible for training groundskeepers to fill in respondeat superior. See Taylor, 880 F.2d at 1045 (“There is no respondeat superior liability under section 1983.”). Mr. Bryant attempts to avoid dismissal by arguing in his Opposition, for the first time, that Defendant Atchley was aware of the gopher holes because SVSP staff had previously been injured by the gopher holes. See Opp. at 4-5. However, Mr. Bryant reiterates that he sued Defendant Atchley as a supervisor rather than a direct participant in the alleged wrong, which is impermissible. See id. at 2 (arguing that, because Defendant Atchley was the warden of SVSP, he was responsible for maintenance and for ensuring groundskeepers did their jobs), id. at 5 (same); see also id. at 2-3 (arguing that Defendant Atchley is liable as the “hiring authority”), id. at 6 (same). First, if Mr. Bryant had any facts showing Defendant Atchley’s personal involvement in Mr. Bryant’s injury, those facts needed to be alleged in his Complaint rather than argued in his Opposition. See generally, MTD (arguing this point). As the Ninth Circuit has explained, “[i]n determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff’s moving papers, such as a memorandum in opposition to a defendant’s motion to dismiss. . . . The focus of any Rule 12(b)(6) dismissal—both in the trial court and on appeal—is the complaint.” Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (emphasis in original; citations omitted). It thus would not be proper for the Court to consider allegations raised for the first time in Mr. Bryant’s Opposition. See Shek v. Cal. Nurses Ass’n/Caregivers & Healthcare Emps. Union, No. C-10-1483-EMC, 2010 WL 3155830, at *1 (N.D. Cal. Aug. 9, 2010) (noting that the papers the plaintiff submitted in support of his opposition to a dismissal motion “may not be considered for purposes of a motion to dismiss”). Second, even were the Court to consider allegations raised in the Opposition rather than in the Complaint, Mr. Bryant’s Opposition still would not show that Defendant Atchley may be held liable. As explained above, it is well-settled that where there is no evidence that the supervisor was personally involved or connected to the alleged violation, the supervisor may not be liable. See Edgerly v. City and Cnty. of S.F., 599 F.3d 946, 961 (9th Cir. 2010). In other situations in facility, the Ninth Circuit has affirmed dismissal of allegations against the supervisor. See id. at 961. Mr. Bryant made clear in his Opposition that he sued Defendant Atchley as a supervisor rather than because Defendant Atchley directly caused Mr. Bryant’s injury, see Opp. at 2-3, 5-6, and so his claims still fail even if the Court considers the Opposition’s allegations. To the extent Mr. Bryant would argue that Defendant Atchley should be held liable because he was aware of the gopher holes (which, again, is not alleged in the Complaint), even in the Opposition Mr. Bryant does not provide facts to support this argument. Rather, he states that Defendant Atchley’s quarterly facility tours, and the fact that staff had previously injured themselves in gopher holes, were “more than enough [to] know the [gopher hole] hazard existed.” Opp. at 5. These statements do not demonstrate that Defendant Atchley had actual knowledge that the gopher holes existed and posed a risk to prisoners, as is required to state an Eighth Amendment claim.3 Rather, for Mr. Bryant’s allegation regarding Defendant Atchley’s visits to support a contention that Defendant Atchley had subjective knowledge of the gopher holes and the risks they posed, the Court would have to presume (without supporting facts) that Defendant Atchley personally visited Facility B’s exercise yard; saw the gopher holes while there; realized that the gopher holes were a recurring problem that the groundskeepers had not fixed, rather than recently dug by wild animals; and decided not to instruct the groundskeepers to fix the holes. Similarly, the allegation regarding staff injuries would require the Court to presume (again without supporting facts) that Defendant Atchley was personally informed when a staff member injured himself; was given details of that injury (e.g., “the staff member fell in a gopher hole on B-yard”) rather than a summary (e.g., “the staff member was injured during a fall”); knew that prisoners accessed the same location at which the staff member was injured; and decided not to instruct the groundskeepers to fix the holes. Both conclusions require too many presumptions to be accepted 3 See Harrington v. Scribner, 785 F.3d 1299, 1304 (9th Cir. 2015) (“To prove deliberate indifference, subjective recklessness is required, that is, an official ‘cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.’ . . . Harrington was not entitled, as he argues here, to here. Moreover, even if the Court were to accept these conclusions and infer that Defendant Atchley had subjective knowledge of the gopher holes and the risks they posed, this would not overcome the separate bar against holding Defendant Atchley responsible on a theory of respondeat superior. Because the Complaint did not allege any facts to show that Defendant Atchley was personally involved in Mr. Bryant’s injury, the claim against Defendant Atchley is DISMISSED. Because the Opposition also failed to provide any facts sufficient to overcome the general bar against supervisory liability, dismissal is without leave to amend in this action. For Mr. Bryant’s benefit, the Court notes that this means that Mr. Bryant cannot re-allege his safety claim in the instant action, although he could file a new lawsuit on his safety claim at a later date if he sued a proper defendant, such as a groundskeeper. C. Defendants’ Joinder Arguments are Moot Defendants argue that Mr. Bryant improperly sued unrelated Defendants, and filed a lawsuit containing unrelated claims. MTD at 4-8. Specifically, Defendants argue that the safety claim for the gopher hole-induced injury against a custodial Defendant Atchley is unrelated to the medical needs claim against medical Defendants Lam and Rivera. See id. The Court dismissed Mr. Bryant’s safety claim. See supra III.B. Thus, the only claim remaining in this action is the medical needs claim, filed against medical defendants. Defendants’ joinder arguments are thus moot, and the Dismissal Motion is DENIED as to the medical needs claim. The Court previously found that Mr. Bryant had stated a cognizable claim against Defendant Lam for deliberate indifference to serious medical needs. See Docket No. 8 at 2-3. Because the Court denies Defendants’ motion as to that claim, it remains in this action. D. More Information is Needed about Defendant Rivera As noted above, Mr. Bryant sued two medical personnel: Defendant Lam directly interacted with Mr. Bryant and refused to conduct a physical examination, and Defendant Rivera is the Chief Medical Officer of SVSP. See generally, Compl. Rivera, nor does it include any facts to suggest that Defendant Rivera was familiar with Mr. Bryant’s medical needs. See generally, Compl. Indeed, the only factual allegation as to Defendant Rivera is that he was “attempting to be cost effective.” Id. at 6. The exhibits attached to the Complaint do not mention Defendant Rivera at all. See generally, Compl., Exs. It therefore appears that, like Defendant Atchley, Mr. Bryant sued Defendant Rivera only because he is a supervisor. As explained supra III.A, Mr. Bryant may not proceed against a defendant unless that individual had some personal involvement in the harm done to Mr. Bryant. Because Mr. Bryant did not include facts to suggest that Defendant Rivera had some personal involvement in the harm, Mr. Bryant’s medical needs claim is DISMISSED as to Defendant Rivera. However, because this defect does not appear to be incurable, and because a factually-supported claim against Defendant Rivera would clearly be properly joined to the claim against Defendant Lam, dismissal of the claim against Defendant Rivera is WITH LEAVE TO AMEND. Mr. Bryant may file an amended complaint showing Defendant Rivera’s personal involvement in the harm caused to Mr. Bryant, or may inform the Court that he elects to stand upon the original Complaint. In the latter instance, this action will proceed only against Defendant Lam. For the foregoing reasons, Defendant’s motion to dismiss is GRANTED in PART and DENIED in PART. Docket No. 21. The Court has (a) dismissed without leave to amend the safety claim against Defendant Atchley, (b) declined to dismiss the medical needs claim against Defendant Lam, and (c) granted leave to amend the medical needs claim against Defendant Rivera. If Plaintiff wishes to file an amended complaint, he must file and serve an amended complaint no later than September 15, 2022. The amended complaint must comply with the directions in this order and must include the caption and civil case number used in this order and the words AMENDED COMPLAINT on the first page. Plaintiff is cautioned that his amended complaint must be a complete statement of his claims, except that he may not repeat claims the Court has dismissed from this action. See Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc) (“For claims dismissed with prejudice and without leave to amend, we will not require that they be repled in a subsequent amended complaint to preserve them for appeal. But for any claims voluntarily dismissed, we will consider those claims to be waived if not repled.”). If Mr. Bryant does not file an amended complaint by the deadline, or if Mr. Bryant files a notice that he wishes to stand on the allegations in his original Complaint, then the action will proceed as to the medical needs claim against Defendant Lam. The Court will set a briefing schedule as to that claim upon the receipt of a response from Mr. Bryant, or upon expiration of the deadline to amend. This order disposes of Docket No. 21. Dated: July 28, 2022 ______________________________________ EDWARD M. CHEN United States District Judge