| FRED 2 of NOV 06 209 □ 3 CLERK) 8 & beri □□□□□ + SCUTHERN DISTRICT GF □□□□□□□
6 . 7. 8 UNITED STATES DISTRICT COURT 9. _ SOUTHERN DISTRICT OF CALIFORNIA 10 oe 11 || ROBERT H. OUTMAN, CDCR No. Case No.: 18cv2101-BAS(KSC) . 2 P-79939, . . □□ . Plaintiff. REPORT AND RECOMMENDA- 13 , TION RE DEFENDANTS' MOTION TO DISMISS □□ DANIEL PARAMO, Warden; 15 SANCHEZ, Captain; WILLIAMS, |. Woe. No. 22.] 16 || Correctional Counselor; C. YORK, CCT; : 7 M. VILLATUERLE, CCII; B. VOGEL, .CCI, B. OLIVARRIA, Appeals 18 || Coordinator; B. SELF, Appeals . 19 Coordinator; K. RODRIGUEZ, Psychologist; and S. BAHRO, Ph. D 20 || Psychologist, Defendants.
23 Plaintiff Robert H. Outman, proceeding pro se and currently incarcerated at the 24 || California Health Care Facility in Stockton, California, filed this civil rights action 25 pursuant to 42 US.Cr§ 1983 in the Eastern District of California on August 27, 2018. 26 No. 1] The case was later transferred to this Court. [Doc. No. 7.] 27 Before the Court is a Motion to Dismiss the Complaint by defendants Vogel, 28 || Olivarria, Bahro, Searles (formerly Sanchez), Rodriguez, Self, Paramo, Villafuerte, and
1 || York [Doc. No. 22];' plaintiff's Opposition to defendants’ Motion to Dismiss [Doc. No. and defendants’ Reply to plaintiff's Opposition [Doc. No. 31]. For the reasons -3 outlined below, IT IS RECOMMENDED that the District Court GRANT defendants’ 4 ||Motion to Dismiss as to all defendants and causes of action with leave to amend. 5 Background 6 Plaintiff claims that prison officials at Richard J. Donovan Correctional Facility 7 ||\CRID”) were deliberately indifferent when they failed to follow doctors’ 8 ||recommendations excluding him from dormitory housing and to provide him with fair 9 || process to challenge decisions by prison officials.to clear him for dormitory housing. [Doc. 10 ||No. 1, at pp. 1, 25.] The Complaint alleges plaintiff was diagnosed and treated in a 11 || psychiatric hospital for Post-Traumatic Stress Disorder (PTSD) after he sustained gunshot 12 wounds to his left hip and right elbow during a work-related incident. He was later 13 j|incarcerated for a criminal offense. [Doc. No. 1, at pp. 1, 4.] While incarcerated at Mule 14 |;Creek in 2008, plaintiff claims he suffered a heart attack and was then ordered into 15 ||dormitory housing “against recommendations of fa] psychologist.” [Doc. No. 1, at p. 4.] 16 || Thereafter, the Warden issued a letter excluding plaintiff from “dorm-type housing” based 17 a doctor’s recommendation. [Doc. No. 1, at p. 5.] Plaintiff had another heart attack in 18 || July 2016 and was prescribed with a wheelchair because of heart disease and other health 19 j/issues. He remained “cell housed” at Mule Creek until August 2016, but he was then 20 21 : 22 33 □ 1 Defendants Williams and Villafuerte have not been served with the Complaint. [Doc. No, 22-1, at p. 16.] In his Complaint, plaintiff misspelled defendant Villafuerte’s 25 |jname as Villatuerle. On the caption of defendants’ Motion to Dismiss, defendant 26 Williams is not listed as one of the defendants bringing the Motion; defendant Villafuerte is listed as one of the defendants bringing the Motion. Both defendants Williams and 27 || Villafuerte are mentioned in the body of the Motion, so the Court will assume that 28 defense counsel intended to include these defendants as parties to the Motion to Dismiss even though they have not been served.
1 || transferred to the RID, because Mule Creek is “not wheelchair compatible.” [Doc. No. 1, 2 |/at p. 5.] RJD was able to accommodate plaintiff s need for cell housing and wheelchair compatibility. [Doc. No. 1, atp. 5.) 4 Dormitory Exclusion Documents from Mule Creek. In support of his assertion he 5 |} was medically excluded from dormitory housing at Mule Creek, plaintiff attached several 6 | documents as exhibits to his Complaint: 7 (1) A letter signed by Melvin Macomber, Ph.D., on September 1, 2008 8 |}concluding based on his evaluation and psychological testing that a dormitory setting 9 would not be appropriate for plaintiff because of his serious physical limitations □□□□□ a 10° prosthetic hip and a crippled arm from his involvement in a shooting incident while he was 1] deputy sheriff) and because “he has a serious case of PTSD from this shooting.” [Doe. 12 No, I, at p. 33.] According to Dr. Macomber, plaintiff cannot cope with noise, crowds, or 13 ||confusion. As a result, he will not go to the dining hall for his meals and-lives on food 14 |i purchased from the canteen. It was Dr. Macomber’s opinion that plaintiff would be unablé 15 to tolerate the noise and confusion of a dormitory setting as he would be unable to sleep, 16 || would become severely anxious, and “would become a psychological and medical liability 17 || (he has high blood pressure).” [Doc. No. 1, at p.33.] 18 (@) ~~ Areport signed on December 4, 2015 from Wendy S. Weiss, Ph.D., Forensic 19 ||Psychologist, Board of Parole Hearings/Forensic Assessment Division, California 20 || Department of Corrections and Rehabilitation (“CDCR”). This report states that plaintiff 21 ||has ongoing symptoms that. meet the criteria for post-traumatic stress disorder. The 22 ||symptoms include avoidance of large crowds and a startle response to various stimuli, 23 including the sound of gunshots and radios. [Doc. No. 1, at pp. 35-36.] 24 GB) A Jetter written by Dr. Macomber on January 20, 2016 and addressed. to 25 || Associate Warden D. Lory. In this letter, Dr. Macomber states that he has known plaintiff 26 2008, when he was moved to a dormitory setting “which resulted in serious trauma 27 ||and impaired health.” [Doc. No. 1, at p. 34.] Because of the serious physical injuries. 28 ||mentioned in his prior letter, Dr. Macomber stated plaintiff would be unable “to crawl into .
1 confined space ofa dormitory bunk.” [Doc. No. 1, at p. 34.] In addition, Dr. Macomber 2 || stated plaintiff has PTSD and “experiences panic attacks when he is around crowds, noise, 3 ||radio static sounds, and disturbances that occur regularly in the dormitory setting.” [Doc. 4 1, at p. 34.] Dr. Macomber therefore stated as follows: “To move [plaintiff] into a 5 ||dormitory at his age and impaired health would be in his case fatal in my opinion.” [Doc. 6 ||No. 1, at p. 34.] 7 (4) A CDCR form entitled Mental Health Interdisciplinary Treatment Team, 8 || Housing/Program Recommendation. The form was signed on March 3, 2016, by several 9 individuals, including a psychiatrist, a team leader, and the Chief of Mental Health. [Doc. ‘1, at p. 31] The following is handwritten on the form: “Dorm exclusion based on 11 |; 1/20/16 letter written to [Associate Warden] D. Lory by M. Macomber, Ph.D.” [Doc. No. 12 at p. 31.) 13 First Classification Hearing at RJD. On‘November 30, 2016, after plaintiff was 14 transferred to RJD, he was called to a Unit Classification Committee hearing. Defendant 15 {| Sanchez, a:captain, chaired the hearing, and defendant Vogel attended. Plaintiff claims he 16 ||attempted to introduce his documents showing he should be excluded from dormitory 17 housing but was told his documentation was “of no value,” and he would be transferred to 18 || dormitory housing. [Doc, No. 1, at p. 6.] . 19 Plaintiff attached the “Classification Committee Chrono” from the November 30, 20 ||2016 hearing to his Complaint. [Doc. No. 1, at pp. 38-39.] This form states plaintiff said 21 ||he did not wish to transfer to “RJD Facility E,” because he does not want to be housed in (22 dormitory setting. Plaintiff explained that he suffers from PTSD and “dorm living □□□□□□ 23 ||his condition worse.” [Doc. No. 1, at p. 38.] However, the form states he was cleared for 24 “dorm and double cell living.” [Doc. No. 1, at p. 38.] oe □ 25 - After the. Classification Committee’s recommendation was made, plaintiff 26 challenged the recommendation by pursuing a CDCR 602 inmate appeal. The Complaint 27 || alleges plaintiff encountered many obstacles and delays in pursuing his CDCR 602 appeal. 28 || [Doc, No. 1, at pp. 6-11.] For example, an exhibit to the Complaint indicates this appeal
1 was rejected at the first level on March 1, 2017, because plaintiff did not submit “necessary 2 supporting documents” (i-e., “a copy of [the] UCC. Action dated: 11/30/16, with auditor 3 |laction”). However, plaintiff alleges his attempts to obtain a copy of these supportings 4 ||documents were “ignored” and/or delayed. [Doc. No. 1, at pp. 6-8, 58.] 5 Plaintiff also challenged the Classification Committee’s recommendation by 6 sending correspondence to RJD’s warden, defendant Paramo, and to RJD’s Mental Health 7 Department. [Doc. No. 1, at p. 6-7, 47, 48, 52.] On December 4, 2016, plaintiff completed 8 form requesting mental health care services. [Doc. No. 1, at pp. 6, 46.] He then hada 9 || consultation on December 9, 2016 with E. Rodriguez, who agreed that plaintiff should not 10 ||be placed in dormitory housing based on the recommendations from Mule Creek. 11 j|However, E. Rodriguez told plaintiff that he did not have the authority to “generate a 12 }|chrono” to this effect. E. Rodriquez did agree to make a telephone call to defendant 13 Williams about the matter and advised plaintiff to show his documentary evidence to 14 defendant Williams.” [Doc. No. 1, atp.50.]. 15 ‘On December 11, 2016, plaintiff had a second consultation with E. Rodriguez, who 16 reported to plaintiff that he had a telephone conversation with Dr. Sato from RJD Mental 17 || Health, but Dr. Sato indicated plaintiff's documents were “ofno value” because they came 18 a different facility (ie., Mule Creek).. The form indicates that E. Rodriguez told 19 plaintiff he would not be given a dormitory housing exclusion, but he could submit a CDCR 20 ||602 inmate appeal in the event he was placed in dormitory housing and did not like the 21 || placement. [Doc. No. 1, atp. 22 | In a letter dated December 28, 2016, defendant Paramo (warden) responded to 23 || plaintiff's correspondence of December 6, 2016. [Doc. No. 1, at pp. 6, 8.] A copy of this 24 |I letter is attached to the Complaint as an exhibit. [Doc. No. 1, at pp. 56-67,] Defendant
|| □□ 27 The Complaint refers to two different individuals with the last name of Rodriguez. ng E. Rodriguez is not a named defendant. K. Rodriguez, an RJD staff psychologist, is a named defendant, and the allegations against her are addressed below.
1 |jParamo’s letter explains that the November 30, 2016 Classification Committee 2 ||recommended plaintiff “be retained at [RID], Facility B, and for this] case to be referred 3 [RJD’s] Mental Health Department for evaluation with regards to Dormitory Housing.” 4 | [Doc. No. 1, at p. 56 (emphasis added).] Defendant Paramo’s letter further states that 5 ||plaintiff’s “transfer is under review and [his] case will ‘be returned to the assigned 6 || counselor, pending mental health evaluation and/or for further action.” [Doc. No. 1, at 7 ||p. 36.] In addition, defendant Paramo’s letter states that the Classification Committee’s 8 |lrecommendations would be reviewed by the Classification and Parole Representative 9 ||(C&PR), who would “make the final determination” as to where plaintiff could be housed 10 || based on the facts and circumstances of his case. [Doc. No. 1, at p. 56.] On March 1, 2017, plaintiff's CDCR 602 inmate appeal was rejected for failure to 12 | submit supporting documents, so plaintiff addressed a CDCR 22 request to defendant York 13 on March 4, 2017, asking for a copy of the “UCC ACTION DATED 11/30/16, with auditor 14 action.” [Doc. No. 1, at p. 59.] Plaintiff made a second CDCR 22 request to defendant -15 |] York on March 13, 2017. [Doc. No. 1, at p. 65.] Since he had not received a response, 16 || plaintiff sent a CDCR 22 request entitled “unanswered CDCR 22’s” to York’s supervisor 17 March 21,2017. [Doc.No.1l,atp.67]
18 Next, defendant York provided a response dated March 28, 2017, which states “see 19 attached.” [Doc. No.1, at p. 64,] However, it appears the attachment was only a copy of 20 November 30, 2016 Classification Committee Chrono without the requested 21 |}documentation about any “auditor action.” [Doc. No. 1, at pp. 64-66.] “A second “staff 22 ||response” to plaintiff s March 4, 2017 CDCR request is dated April 20, 2017, and it states 23 follows: “Your case was finalized and you will not be referred for transfer at this time. 24 ||No auditor action took place.” [Doc. No. 1, at p. 59 (emphasis added).] Finally, plaintiff 25 ||received a response to his March 21, 2017 CDCR 22 addressed to defendant York’s 26 || supervisor informing him that his concerns had been addressed. [Doc. No. 1, at pp. 10, 27 . 28 .
1 Second Classification Hearing at RJD. On November 1, 2017, the Complaint 2 |alleges plaintiff was “summoned” to a second Classification Committee hearing, which 3 || 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, 5 dated October 25, 2017. In his Petition, plaintiff objected to any transfer to dormitory 6 |/housing based on prior findings and recommendations indicating dormitory housing is 7 |*toxic” to plaintiff s health because of his advanced age and declining health. [Doc. No. 8 |) 1, at pp. 10-11, 63.] Plaintiff does not believe his Petition was considered. Instead, 9 defendant York read from a prepared statement indicating plaintiff had been cleared for 10 dormitory housing by defendant K. Rodriguez. Thereafter, plaintiff alleges he was “rudely 11 || dismissed” and told he would be going to dormitory housing. [Doc. No. 1, at p. 11.] 12 The exhibits attached to the Complaint include a copy of the Classification 13 ||Committee Chrono from the November 1, 2017 hearing. [Doe. No. 1, at pp. 83-84.] This 14 document states plaintiff was.cleared for dormitory housing based on the recommendation 15 || of defendant K. Rodriguez, a staff psychologist, but it also states that plaintiff would be 16 ||scheduled for another evaluation to determine the need for placement into the “CCCMS 17 program as a result of his PTSD and occasional panic attacks.” [Doc. No. 1, at p. 83.] In 18 addition, this document states plaintiff expressed an interest in being transferred back to 19 ||Mule Creek or another facility in. northern California, because he has family ties there. 20 Because of plaintiff's concerns about dormitory living, and other case factors, such as his 21 ||status as “High Risk Medical,” the Committee recommended a transfer to Mule Creek or 22, another appropriate facility in northern California “in an effort to facilitate family ties.” 23 [Doc. No. 1, at p. 84.)
24 Plaintiff also challenged the Classification Committee’s November 1, 2017 25 recommendation by addressing CDCR 22 interview requests to defendant K. Rodriguez. 26 || On February 1, 2017, plaintiff had an appointment with defendant K. Rodriguez about his 27 ||request for a “dormitory living exclusion chrono.” [Doc. No. 1, at pp. 9, 60.] Treatment 28 ||notes for this appointment are attached to the Complaint as an exhibit. [Doc. No. 1, at
1 ||p. 60.] The allegations in the Complaint and the treatment notes indicate that plaintiff 2 ||presented copies of several documents to support his request for a dormitory housing 3 exclusion; but defendant K. Rodriguez advised plaintiff that mental health providers do not 4 ||make housing recommendations. In addition, the notes clarify that the Mental Health 5 Department has cleared plaintiff for dormitory living, and he is not a participant in the 6 ||mental health program, but he will be “scheduled for an evaluation to determine need for 7 || transfer to the CCCMS-LOC program.” [Doc. No. 1, at p. 60.] 8 The next day, F ebruary 2, 2017, plaintiff addressed a CDCR 22 to defendant OTK. Rodriguez because he was not satisfied with the information he was given during his 10 |/appointment. Dr. Bahro responded as follows. on March 8, 2017: “Continue to address 11 |} your issue of [mental health] symptoms and concerns with your clinician as [K. Rodriguez] 12 || suggested so that she can assist you.” [Doc. No. 1, at p. 61.] Plaintiff alleges this response 13 || was part of a “continuing pattern of indifference.” [Doc. No. l,atp.9.] 14 Thereafter, plaintiff continued to submit CDCR 22 requests disputing the 15 }| Classification Committee’s November 1, 2017 recommendations, requesting copies of 16 documents and a rehearing, and complaining that staff members were “stalling the process” 17 his 602 appeal and refusing to answer his CDCR 22 requests. [Doc. No. 1, at pp. 10- 18 || 13, 62, 73-74, 77-79, 80-82.] 19 Subsequent Transfers to Other Facilities. On December 17, 2017, plaintiff was 20 ||transferred to the Substance Abuse Treatment Facility (““SATF”) in Corcoran, California. 2] Shortly after his arrival at SATF, plaintiff was interviewed and evaluated by a physician, 22 || who determined he would be better situated in an “[outpatient housing unit] instead of a || dorm environment because he [was] feeling fearful/unsafe and is wheelchair dependent 24 || with multiple co-morbidities.” [Doc. No. 1, at pp. 13-14, 86.] 25 || On December 25, 2017, psychologist notes state plaintiff was in the [mental health] 26 of care and “should be evaluated for an [outpatient housing unit] due to his complex 27 +|medical problems.” [Doc. No. 1, at p. 95.] Later notes by the same psychologist dated 28 || January 24, 2018 state as follows: “Due to patient’s symptoms and history of being single- 8
1 || celled, the patient struggles excessively w/stressful dormitory living environment. [Doc. 2 || No. 1, at p. 96.] The Complaint acknowledges that these treatment notes and a later note 3 || contain an error as they indicate plaintiff was placed in dormitory housing at RJD, but 4 || he was in “cell housing” at RJD even though he had been cleared for dormitory living. 5 || When he was transferred from RJD to SATF, plaintiff was briefly placed in a dormitory 6 setting but promptly evaluated and transferred to alternative housing. [Doc. No. 1, at 7 ||pp. 15, 89, 96.] In early 2018, plaintiff was transferred from SATF to the California Health 8 || Care Facility (“‘CHCF”) in Stockton, California, where he is currently housed, and CHCF 9 ||notes indicate plaintiff wishes to stay at this facility. [Doc. No. 1, at p. 15 , referring to p. 10 96-97.] oe li . Discussion 12 Motion to Dismiss Standards. 13 A plaintiff's complaint must provide a “short and plain statement of the claim □ 14 || showing that [he] is entitled to relief.” Johnson v. Riverside Healthcare System, LP, 534 15 |) F.3d 1116, 1122 (9th Cir. 2008) (citing Fed.R.Civ.P. 8(a)(2)). “Specific facts are not _ 16 necessary: the statement need only ‘give the defendant(s] fair notice of what .. . the claim 17 |/is and the grounds upon which it rests.” Erickson v. Pardus, S51 US. 89, 94 (2007). - 18 A motion to dismiss under Federal Rule 12(b)(6) may be based on either a “lack of 19 cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable 20 legal theory.” Johnson v. Riverside, 534 F.3d at 1121. A motion to dismiss should be 2] granted if the plaintiff fails to proffer “enough facts to state a claim to relief that is 22 ||plausible on its face.” Bell Atlantic Corp. v. T wombly, 550 U.S. 544, 570 (2007). “A 23 {)claim has facial plausibility when the plaintiff pleads factual content that allows the court 24 ||to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 25 || Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In determining whether the plaintiff has 26 |/alleged enough facts to state a claim, a District Court may consider “material which is 27 || properly submitted as part of the complaint,” such as an attached exhibit. Hal Roach | 28 || Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 (9th Cir. 1989), fp
1 When considering a Rule 12(b)(6) motion to dismiss, the Court must “accept all 2 ||allegations of material fact in the complaint as true and construe them in the light most 3 favorable to the non-moving party.” Cedars-Sinai Med. Ctr. v. Nat’! League of □ 4 || Postmasters, 497 F.3d 972, 975 (9th Cir. 2007). However, it is not necessary for the 5 Court “to accept as true allegations that are merely conclusory, unwarranted deductions 6 || of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 7 (9th Cir. 2001). “[T]hreadbare recitals” of the elements of a cause of action, § ||“supported by mere conclusory statements,” are not enough. Ashcroft v. Igbal, 556 U.S. 9 678. “Factual allegations must be enough to raise a right to relief above □□□ 10 || speculative level.” Bell Al. Corp. v. Twombly, 550 U.S. at 555. 1 On the other hand, “[a] document filed pro se is ‘to be liberally construed,’ and ‘a 12 ||pro se complaint, however inartfully pleaded, must be held to less stringent standards 13 than formal pleadings drafted by lawyers. . ..” Erickson v. Pardus, 551 U.S. at 94. 14 Particularly in civil rights cases, courts have an obligation to construe the pleadings [5 liberally and to afford the plaintiff the benefit of any doubt. Bretz v. Kelman, 773 F.2d 16 || 1026, 1027 n.1 (9th Cir. 1985). 17 Eighth Amendment/Deliberate Indifference Standards. 18 To prevail on a claim for violation of constitutional rights under Title 42, United □ 19 States Code, Section 1983, a plaintiff must prove two elements: (1) that a person acting 20 under color of state law committed the conduct at issue; and (2) that the conduct deprived 21 the claimant. of some right, privilege or immunity conferred by the Constitution or the 22 laws of the United States. 42 USC. § 1983; Jensen v. Lane County, 222 F.3d 570, 574 23 ||(9" Cir, 2000), _ oe 24 || “The Constitution “does not mandate comfortable prisons.” Farmer v. Brennan, 25 U.S. 825, 832 (1994). However, the Eighth Amendment does require prison officials 26 “provide humane conditions of confinement; prison officials must ensure that inmates 27 |lreceive adequate food, clothing, shelter, and medical care, and must take reasonable 28 || measures to guarantee the safety of the inmates.” Jd. (internal quotations omitted). 190: □
1 Two requirements must be met to establish a violation of the Eighth Amendment. 2 ||First, the deprivation alleged must be, objectively, sufficiently serious. Jd: at 34. □ 3 ||(Gnternal quotations omitted). In other words, “a prison official’s act or omission must 4 ||result in the denial of the minimal civilized measure of life's necessities.” Id. (internal quotations omitted). Ifa failure to prevent harm is alleged, a prisoner must show “he is 6 || incarcerated under conditions posing a substantial risk of serious harm.” Id. 7 Second, a prison official must have a “sufficiently culpable state of mind” to 8 || violate the Eighth Amendment. “In prison-conditions cases that state of mind is one of 9 || deliberate indifference to inmate health or safety.” Id. (internal quotations omitted). “[A] 10 || prison official cannot be found liable under the Eighth Amendment for denying an inmate 11 humane conditions of confinement unless the official knows of and disregards an 12 excessive risk to inmate health or safety; the official must both be aware of facts from 13 || which the inference could be drawn that.a substantial risk of serious harm exists, and he 14 ||must also draw the inference.” Jd. at 837. If prison officials knew of a substantial risk to I5 || an inmate’s health or safety, those officials would be “free from liability if they 16 responded reasonably to the risk, even if the harm ultimately was not averted.” Id. at- 17 844. In short, a prison official's duty under the Eighth.Amendment is to ensure 18 |; “reasonable safety.” 19 || Deliberate Indifference Claims re Dormitory Housing Clearance, 20 In their Motion to Dismiss, defendants argue that the District Court should dismiss □ 21 || plaintiff's Eighth Amendment claims alleging prison officials at RID were deliberately 22 || indifferent when they cleared plaintiff for dormitory housing, because these claims are 23 ||not objectively serious enough to constitute constitutional violations. [Doc. No. 22-1, at 24 pp. 18, 29] In defendants’ view, housing changes are a normal part of prison life, and □ 25 ||inmates can expect many housing changes during incarceration to accommodate the 26 || prison system. Although prisoners cannot simply demand to be excluded from certain 27 || types of housing, they have “many avenues” to challenge housing change 28 |/recommendations, and, like everyone else, “are subject to bureaucratic processes.” [Doc. a
1 No. 22-1, at p. 18.] Defendants contend that plaintiff administratively challenged the 2 || Classification Committee’s decisions, and he was not transferred to dormitory housing —
though the Classification Committee cleared him for this type of housing on □ 4 || November 30, 2016 and November 1, 2017. Instead, as indicated in the Complaint, 5 || plaintiff received a reversal or an-abatement of these decisions, and he remained in cell 6 ||housing while at RJD. [Doc. No. 22-1, at pp. 16-17, 20.] In his Opposition to || defendants’ Motion to Dismiss, plaintiff “stands on the veracity and merit of the 8 {| Complaint,” and requests that the Court deny defendants’ Motion. [Doc. No. 29, at p. 3.] 9 A review of the Complaint indicates plaintiff alleges deliberate indifference against 10 || the following defendants at RJD in connection with the recommendations for dormitory [1 ||housing clearance: (1) members and/or attendees of the November 30, 2016 12 Classification Committee hearing (.e., defendants Searles (formerly Sanchez) and 13 || Vogel), (2) members and/or attendees of the November 1, 2017 Classification Committee 14 || hearing (i.e., defendants York and Searles) [Doc. No. 1, at pp, 5-6, 9-13, 38, 83]; 15 defendant Williams [Doc. No. 1, at pp. 5, 7, 50-51]; (4) defendant Paramo (warden) - 16 |} [Doc. No. 1, at pp. 6-9, 12-13, 47, 48, 56-57]; (5) defendant K. Rodriguez, staff 17 || psychologist [Doc. No. 1, at pp. 9-11, 60, 63]; and defendant Bahro, M.D. [Doc. No. 1, at 18 ||pp.9, 61] oe 19 “Double-celling” and other housing assignments do not violate the Eighth. 20 Amendment unless they lead to the unnecessary infliction of pain; a deprivation □□ . 21 “essential food, medical care, or sanitation;” or the creation of “other conditions 22 intolerable for prison confinement,” such as an increase in violence among inmates. 23° Rhodes v. Chapman, 452 U.S. 337, 348-350 (1981). Here, plaintiff has not alleged a _ 24 |) deprivation of his basic needs, such as adequate food, clothing, shelter, sanitation, or 25 || basic medical care. Nor does he allege that he suffered any pain, illness, or physical 26 ||injury. Rather, the gravamen of plaintiff's deliberate indifference claims seems to be that 27 || RID officials ignored the dormitory housing exclusion by Mule Creek's physicians, 28 || which allegedly lead to a substantial risk of harm to plaintiff? S health and safety. oy
1 When a prison official ignores the instructions of a prisoner’s treating physician, it 2 |jmay constitute deliberate indifference to the prisoner’s medical needs. Wakefield v. 3 Thompson, 177 F.3d 1160, 1165 (9® Cir. 1999). For example, the plaintiff in Wakefield 4 alleged that his treating physician regularly prescribed a medication to manage his mental 5 || disorder and prevent violent outbursts. Shortly before his release from prison, plaintiff's 6 || treating physician gave him a prescription for a two-week supply of his medication to be 7 dispensed to him upon his release from prison, so he would have time to get to another 8 || prescribing doctor. On the day plaintiff was released, he asked the prison official who was handling his discharge for his medication, but the official was “too busy” and refused 10 || to give plaintiff the medication or even call the medical staff to check on the prescription. 11 |) As a result, plaintiff suffered a relapse of his condition which lead to serious 12 |}consequences. Jd. at 1162. The Ninth Circuit held that the plaintiff's allegations stated a 13 claim under the Eighth Amendment for deliberate indifference to his serious medical: 14 ||needs. Jd. at 1164-1165. ‘AS _ Here, the allegations in plaintiff's Complaint, combined with the exhibits attached 16 thereto, clearly show that members of the Classification Committees and defendant 17 ||K. Rodriguez only made recommendations to clear plaintiff for dormitory housing and □ 18 recommendations were never carried out. Rather, following the first Classification: 19 Committee hearing on November 30, 2016, plaintiff remained in cell housing at RJD. As 20 || defendant Paramo (warden) stated in correspondence to plaintiff dated December 28, 21 2016, which plaintiff allegedly received on January 9, 2017: Classification Committees only make recommendations; plaintiff would not be transferred; plaintiff's case was 23 “under review;” any final determination about plaintiff's housing would be made by other 24 officials; and plaintiff would be referred to Mental Health for a further evaluation. [Doc. 25 No. 1, at pp. 9, 55-57.] Plaintiff was also advised as follows in an April 20, 2017 26 - response to his March 4, 2017 CDCR 22 request: “Your case was finalized and you will □ 27 be referred for transfer at this time. No auditor action took place.” [Doc. No. 1, at. 28 ||p. 59 (emphasis added).] oe 43
1 || Following the second Classification Committee hearing on November 1, 2017, 2 || despite the “cleared for dormitory housing” recommendation by members of the 3 || Classification Committee and defendant K. Rodriguez, plaintiff again remained in cell 4 housing at RJD until he was transferred to another facility in early 2018. As noted above, 5 November 1, 2017 Classification Committee also recommended transfer to another 6 || facility in Northern California to address plaintiffs concerns about dormitory housing 7 || and other factors, such as his medical condition. [Doc. No. 1, at p. 84.] Once again 8 addressing plaintiff's concerns about dormitory housing, defendant Paramo (warden) sent 9 || another letter to plaintiff dated December 22, 2017, in which he repeated that □ 10 |} Classification Committees only make recommendations and final decisions about his □ 11 |/ housing would be made based on many factors and would need to be approved by a 12 Classification Staff Representative before any transfer could be made. [Doc. No. 1, at 13 p. 102.] In addition, plaintiffhas stated in the Complaint that he remained in cell housing 14 |/at RJD even though he had been cleared by the Classification Committee for dormitory 15 ||housing. [Doc. No. 1, at pp. 15,.96.] Then, following his transfer from RJD to two other 16 facilities, plaintiff's housing needs were promptly re-evaluated and addressed by officials 17 ||at those facilities. [Doc. No. 1, at pp. 15-16, 96-101.] 18 || In sum, the recommendations to clear plaintiff for dormitory housing that were 19 made in connection with the Classification Committee hearings on November 30, 2016 20 November 1, 2017 were simply not carried out. Consequently, there is nothing to (21 indicate these recommendations, or the involvement of any of the other defendants 22 |)named in connection with these recommendations, resulted in any unreasonable risk to 23 || plaintiff's health or safety. 24 With respect to the recommendations of defendant K. Rodriguez, in her capacity as 25 staff psychologist at RJD, there is an additional reason why plaintiff's allegations 26 against her do not state a claim for deliberate indifference. The allegations in the 27 || Complaint indicate defendant K. Rodriguez is a mental health professional. “TAI 28 || plaintiff's showing of nothing more than ‘a difference of medical opinion’ as to the need 14
1 ||to pursue one course of treatment over another [is] insufficient, as a matter of law, to 2 establish deliberate indifference. In other words, where a defendant has based his actions |lon a medical judgment that either of two alternative courses of treatment would □□ 4 |jmedically acceptable under the circumstances, plaintiff has failed to show deliberate 5 |\indifference, as a matter of law. [Citation omitted.] To prevail under these principles, 6 plaintiff] must show that the course of treatment the doctors chose was medically 7 unacceptable under the circumstances, [citations omitted], and the plaintiff must show 8 | that they chose this course in conscious disregard of an excessive risk to plaintiff's 9 || health. [Citation omitted.|” Jackson v. Mcintosh, 90 F.3d 330, 332 (9th Cir. 1996). 10 Based on her evaluation, which included a review of plaintiff's history since 11 |}incarceration, defendant K. Rodriguez, staff psychologist, concluded there was “no (12 |/reason for a dormitory housing exclusion.” [Doc. No. 1, at p. 83.] Defendant 13 ||K. Rodriguez did, however, determine plaintiff should be scheduled for another 14 evaluation “to determine the need for placement into the CCCMS program as a result of 15 PTSD and occasional panic attacks.” [Doc. No. 1, at p. 83.] Plaintiff has not alleged 16 |/any facts suggesting her recommendations were medically unacceptable based onthe □ 17-|| circumstances at RJD, which may have been quite different from those at Mule Creek. □ 18 || Accordingly, without more, her recommendations, at most, constitute a difference of 19 opinion with the recommendations of the Mule Creek mental health professionals, □□□ 20 allegations against her are therefore not enough to state a claim for deliberate 21 |lindifference to a serious medical need. 22 |) Under the circumstances presented, it is RECOMMENDED that the District Court 23 || GRANT defendants’ Motion to Dismiss plaintiff's Eighth Amendment claims of 24 deliberate indifference to his health and safety. In this Court’s view, plaintiffs 25 |\allegations, combined with the documentary evidence attached to the Complaint, are not 26 || enough to state a claim for deliberate indifference to plaintiff s health and safety against 27 defendants, including defendant Searles (formerly Sanchez); Vogel; York; Paramo; 28 Rodriguez; and Bahro, M.D.
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1 =Allegations re Plaintiff *s Administrative Requests and Grievances. — 2 _ The allegations against the remaining defendants appear to be that they mishandled 3 || or ignored plaintiff's administrative grievances and requests. For example, the 4 Complaint alleges.that defendant York intentionally caused plaintiff injury, because he 5 || failed to provide him with the documentation he requested and needed to perfect his 6 || appeal in the administrative grievance process. [Doc. No. 1, at p. 10, 58-66.] The. || defendants named in these administrative process allegations in the Complaint include 8 || Williams, York, Paramo, Searles (formerly Sanchez), Bahro, (a psychologist), [Doc. No. 9 i 1, at pp. 3, 5, 6-7, 10-13, 47- 48 50, 52, 56-58, 61-62, 73-74, 77-79, 80, 82.] In addition, 10 Complaint includes a single allegation against defendant Villituerle (correctly spelled, 11 || Villafuerte), a supervisor, who responded to one of plaintiff's CDCR 22 requests 12 “informing plaintiff that his ‘concems have been addressed regarding this form 22.’” 13 }|[Doc. No. 1, at p. 2, 10, 67.] The Complaint also names two appeals coordinators,
14 || Olivarria and Self, but specific allegations against these defendants could not found in the 15 ||Complaint. [Doc. No. I, at p. 3.] In sum, it appears plaintiff seeks to implicate these 16 || defendants solely because of their involvement in the administrative grievance process. 17 In their Motion to Dismiss, defendants argue that plaintiff? 8 due process and 18 deliberate indifference allegations against the defendants should be dismissed for at least 19 reasons. First, there is no constitutional right to a prison administrative grievance. - 20 system, and, in any event, plaintiff received all the process he was due. Second, there are 21 ||no allegations indicating the named defendants knew about but disregarded a substantial 22 risk to plaintiff's health or safety. Defendants contend they would not have had a basis or 23 ||reason to take any action to change the Classification Committee’s recommendations to □ 24 || clear plaintiff for dormitory housing. [Doc. No. 22-1, at p. 22-24] 25 “There is no legitimate claim of entitlement to a grievance procedure.” Mann v. 26 || Adams, 855 F.2d 639, 640 (9th Cir. 1988). “Under the Fourteenth Amendment’s Due □ 27 || Process Clause, a prisoner is entitled to certain due process protections when he is 28 charged with a disciplinary violation. [Citation omitted.] Such protections include the . 16
| }\rights to call witnesses, to present documentary evidence and to have a written statement 2 by the factfinder as to the evidence relied upon and the reasons for the disciplinary action 3 taken.” Serrano v. Francis, 345 F.3d 1071, 1077-78 (9th Cir. 2003). 4 Here, plaintiff's allegations do not involve disciplinary violations. See also, _ 5 || Buckley v. Barlow, 997 F.2d 494, 495 (8" Cir. 1993) (stating that administrative 6 || grievance regulations do not create a liberty interest in access to that procedure; 7 || grievance procedures do “not confer any substantive right upon the inmates” requiring □ 8 || procedural due process protections guaranteed by the Fourteenth Amendment). In other 9 words, without more, any failure by defendants to provide plaintiff with due process 10 protections in connection with his administrative grievances or requests at RJD is not 11 || actionable under Section 1983. 12 _ On the other hand, it is possible for an inmate to state a claim for deliberate □ 13 indifference against a prison administrator, such as an appeals coordinator, if the plaintiff 14 || specifically alleges facts indicating there was an ongoing constitutional violation, such as 15 ||a painful bone fracture that was not being treated, and the administrator had the authority . 16 opportunity to act to prevent the violation but failed to do so. See, e.g., Jett v. 17 || Penner, 439 F.3d 1091, 1045 (9" Cir. 2006); Henderson v. Muniz, 196 F. Supp. 3d 1092, 18 || 1104-1105 (NLD. Cal. 2016). oe 19 |} Here, there are allegations suggesting some defendants may have been negligent in 20 processing a few of plaintiffs requests and/or grievances while he was challenging the 21 || housing recommendations made by the Classification Committees on November 30, 2016 22 ||and November 1, 2017. However, acts of negligence or inadvertence are not enough to 23 || state a claim for deliberate indifference. Estelle y. Gamble, 429 U.S. 97, 106 (1976). 24 There are no allegations against any of the defendants involved in the administrative 25 grievance process indicating they were aware of any ongoing constitutional violation 26 || against plaintiff that would have required some action on their part to prevent a 27 || constitutional violation from continuing. In other words, plaintiff has not alleged enough 28 || facts to state a claim for deliberate indifference to.his health or safety in connection with 17
1 || the grievances and requests he submitted to challenge the housing recommendations of 2 ||the November 30, 2016 and November 17, 2017 Classification Committees. Therefore, 3 under the circumstances presented, it is RECOMMENDED that the District Court 4 || GRANT defendants’ Motion to Dismiss plaintiff's allegations against defendants 5 |} Williams, York, Paramo, Searles (formerly Sanchez), Bahro, Villituerle (correctly 6 || spelled, Villafuerte), Olivarria, and Self for their alleged involvement in processing any 7 | of plaintiff's administrative requests or grievances concerning his request:to be medically 8 |lexcluded from dormitory housing. Leave to Amend. 10 || “TAI district court should grant should grant leave to amend even if no request to I1 amend the pleading was made, unless it determines that the pleading could not possibly 12 || be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494, 497 (9th 13 || Cir.1995) Gnternal quotation marks omitted). The “rule favoring liberality in amendments ‘14 pleadings is particularly important for the pro se litigant. Presumably unskilled in the 15 |j law, the pro se litigant is far more prone to making errors in pleadings than the person 16 who benefits from the representation of counsel.” Lopez v. Smith, 203 F.3d 1122, 1131 17 || Oth Cir. 2000) Ginternal quotation marks omitted). Although unlikely, it is possible 18 || plaintiff might cure the defects in his Complaint by alleging additional facts. It is 19 || therefore RECOMMENDED that the District Court GRANT plaintiff thirty (30) days’ 20 || leave to amend his Complaint. 21 ||V. Qualified Immunity. ee □ 22 || Defendants argues they are entitled to qualified immunity from suit because the 23 allegations in the Complaint, along with the documentary evidence attached to the 24 Complaint, show they acted in an objectively reasonable manner based ona belief their _ 25 conduct was lawful. In their arguments, defendants emphasize the importance of 26 resolving immunity questions at the earliest possible stage in litigation to avoid the costs 27 expenses of litigation. [Doc. No, 22-1, at pp. 24-28.] 28 □□
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1 Qualified immunity shields government officials performing discretionary 2 functions from liability for civil damages “as long as their actions could reasonably have 3 || been thought consistent with the rights they are alleged to have violated.” Anderson v, 4 || Creighton, 483 U.S. 635, 638B640 (1987). As outlined above, this Court has concluded 5 || plaintiff failed to state claims against any of the defendants and has recommended. 6 || granting defendants’ Motion to Dismiss as to all defendants with leave to amend. 7 ||Because it appears possible for plaintiff to amend the Complaint to state viable claims 8 |/against the named defendants and because there is a policy favoring liberal amendment, 9 Court is unable to conclude definitively at this time whether defendants are entitled to 10 || qualified immunity. Under these circumstances, it is RECOMMENDED that the District. 11 j/Court DENY defendants’ Motion to Dismiss on qualified immunity grounds WITHOUT 12 ||PREJUDICE. Defendants should be permitted to renew their request for dismissal on 13 qualified immunity grounds in a summary judgment motion or in another motion to □
14 || dismiss if plaintiff amends the Complaint: 15 Conclusion □□ 16 Having reviewed defendants’ Motion to Dismiss, the undersigned Magistrate □ 17 Judge submits this Report and Recommendation to the United States District Judge 18 || assigned to this case pursuant to Title 28, United States Code, Section 636(b)(1). For the 19 reasons outlined above, IT IS HEREBY RECOMMENDED that the District Court 20 GRANT defendants’ Motion to Dismiss as to all named defendants and causes of action 21 || with thirty (30) days’ leave to amend. «IT IS HEREBY ORDERED that no Jater than December 2, 2019 any party to this 23 |{action may file written objections with the District Court and serve a copy on all parties. 24 || The document should be captioned “Objections to Report and Recommendation.” □ □
25 ITISF URTHER ORDERED that any reply to the objections shall be filed with the 26 || District Court and served on all parties no later than December 1 6, 2019. The parties are iii) 28 oe
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I advised that failure to file objections within the specified time may waive the right to 2 those objections on appeal: of the District Court’s order. Martinez.v. Yist,951 F.2d 3 |11153(9® Cir. 1991). 4 IT IS SO ORDERED. □□ 5 ||Dated: November 7 , 2019 A be pf wh,
q Hon. KarefiS. Crawford =| ell United States Magistrate Judge
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