Barry v. Ratelle

• Decision Date: 03 December 1997
• Docket Number: No. Civ. 97-1159-B (LSP).,Civ. 97-1159-B (LSP).
• Citation: 985 F.Supp. 1235
• Court: U.S. District Court — Southern District of California
• Parties: William F. BARRY, Plaintiff, v. J.M. RATELLE, et al., Defendants.

985 F.Supp. 1235

William F. BARRY, Plaintiff, v. J.M. RATELLE, et al., Defendants.

No. Civ. 97-1159-B (LSP).

United States District Court, S.D. California.

December 3, 1997.

William F. Barry, pro se.

Daniel E. Lungren, George Williamson, Peter J. Siggins, Darrell Lepkowsky, Cynthia S. Floyd, Office of Attorney Gen. for State of Cal., Los Angeles, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT, WITH LEAVE TO AMEND

BREWSTER, District Judge.

On August 5, 1997, Defendants Ratelle, Crews, Armstrong, and Hunt, the four defendants in this action, filed a motion to dismiss Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff did not file an opposition brief to this motion. Upon due consideration of the moving papers and for the reasons stated below, the Court hereby GRANTS Defendants' motion to dismiss Plaintiff's complaint. Plaintiff may amend his complaint by addressing the deficiencies discussed in this order. Plaintiff must file a copy of his first amended complaint with the Clerk of Court and serve copies of the first amended complaint upon all parties to this action within sixty days from the date of this order.

I. BACKGROUND

Plaintiff, an inmate at the R.J. Donovan Correctional Facility in San Diego, has filed a pro se complaint seeking damages pursuant to 42 U.S.C. § 1983 for Defendants' alleged deliberate indifference to his medical needs in violation of his Eighth and Fourteenth Amendment rights. Defendants are the prison warden (Ratelle), the Chief Medical Officer of the prison (Crews) and two prison physicians (Armstrong and Hunt). Plaintiff claims that in early 1996, after an injury that he sustained in prison, he was diagnosed with a hernia and informed by prison doctors that he would need surgery. State officials approved the surgery in December of 1996, but Plaintiff has never received it. Plaintiff was also promised by the prison physicians that he would be given a truss to alleviate the pain from the hernia, which he claims that he has not received. Plaintiff's complaint states that he continues to experience "pain and discomfort on a daily basis" and that he fears "something more serious is going to occur, internally, before I receive any sort of treatment."

All Defendants have moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the following grounds: (1) Plaintiff has failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a); (2) the allegations against Defendants fail to meet the heightened pleading standard required in § 1983 actions by Branch v. Tunnell, 937 F.2d 1382 (9th Cir.1991); and (3) Defendants are immune to suit pursuant to the Eleventh Amendment. Additionally, Defendants Ratelle and Crews argue that Plaintiff is impermissibly attempting to hold them liable under a theory of respondeat superior, and Defendants Armstrong and Hunt assert that Plaintiff's complaint fails to state a claim for violation of a constitutional right.

II. DISCUSSION

A. Standard of Law.

A motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. This court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to plaintiff. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The court need not, however, accept every allegation in the complaint as true; rather, the court "will examine whether conclusory allegations follow from the description of facts as alleged by the plaintiff." Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir.1992) (citation omitted).

B. Plaintiff has alleged exhaustion of his administrative remedies as required by the Prison Litigation Reform Act of 1995.

All Defendants argue that Plaintiff's must be dismissed on the grounds that he has not exhausted available administrative remedies as is now required by the Prison Litigation Reform Act of 1995 (PLRA), Pub.L. No. 104-134, Title VIII, §§ 801-10, 110 Stat. 1321 (1996) and 42 U.S.C. § 1997e(a). Defendants claim that the PLRA requires Plaintiff to exhaust remedies prescribed by the California Tort Claims Act by presenting his claims to the State Board of Control before filing a lawsuit under 42 U.S.C. § 1983. See Cal. Govt.Code §§ 905.2, 911.2 and 945.4.

1. Plaintiff has exhausted his remedies within the prison grievance system.

Defendants do not allege that Plaintiff has not exhausted his administrative remedies within the prison grievance system. The administrative appeal system for inmates in the California prison system is described in Title 15 of the California Code of Regulations. "Any inmate or parolee under the [California Department of Correction's] jurisdiction may appeal any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." Cal.Code Regs tit. 15, § 3084.1(a). In order to exhaust administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, (4) third level appeal to the director of the California Department of Corrections.

Plaintiff's complaint alleges that after attempting to resolve his situation informally, he filed his first appeal within the prison grievance system on November 25, 1996, about ten months after his injury. On December 23, 1996, he received a response from the prison staff that his surgery was approved, but that because of security concerns, he could not be told the date of the surgery. On March 31, 1997, Plaintiff filed a request for a second-level review because three months had passed with no further word from prison officials about the surgery. Although requests for second-level reviews must be responded to within ten working days, Plaintiff alleges that he never received a response. Three months after submitting his request for a second-level review, Plaintiff requested a Director's Level Review on June 6, 1997, to which he has also never received a response. Because Plaintiff has attempted to appeal the prison officials' inaction with regard to his treatment to every level of the prison grievance system, it does not appear (and the moving party has not attempted to show) that Plaintiff has failed to exhaust his administrative remedies within the prison system.

2. Plaintiff is not required to comply with the California Tort Claims Act in order to exhaust his administrative remedies.

Defendants contend that 42 U.S.C. § 1997e(a) requires Plaintiff to comply with the presentment of claim procedures provided in the California Tort Claims Act. Defendants correctly note that federal courts require compliance with the CTCA for pendant state law claims against public employees. Willis v. Reddin, 418 F.2d 702, 704 (9th Cir.1969). Similarly, the federal courts have held that the CTCA applies to state law actions before federal courts sitting in diversity. E.g., Jacobsen v. Marin General Hospital, et al, 963 F.Supp. 866, 870-71 (N.D.Cal.1997). However, no federal court in California has applied the CTCA to a post-PLRA federal civil rights claim against a state official.¹

The legislative history of section 1997e(a), as amended by the PLRA, seems to indicate that the drafters did not intend to require prisoners to exhaust state tort remedies before filing a federal civil rights claim. It implies that Congress merely intended to require exhaustion of prison grievance procedures. See Report on the Activities of the Committee on the Judiciary, H.R.Rep. 104-879 (January 2, 1997) (PLRA "requires prisoners to exhaust the administrative remedies established by the corrections system before they may file a lawsuit in federal court"); see also 141 Cong.Rec. S7498-01, at S7527 (remarks of Senator Kyl) (noting that many prisoners seek relief for matters as to which the "prison grievance system" supplies an adequate remedy.) There is no indication in the legislative history surrounding the PLRA to suggest that Congress intended to legislatively overrule Felder v. Casey, 487 U.S. 131, 140-41, 108 S.Ct. 2302, 2307-08, 101 L.Ed.2d 123 (1988), which held that state law notice-of-claim statutes are inapplicable to § 1983 litigation.

In Felder, the Supreme Court discussed the applicability of a state notice-of-claim provision to a § 1983 suit. The Court noted that because § 1983 contains no statute of limitations, federal courts apply state statutes of limitations to § 1983 suits. However, it distinguished notice-of claim statutes from statutes of limitations, holding that unlike the absence of a statute of limitations, "the absence of any notice-of-claim provision [in 42 U.S.C. § 1983] is not a deficiency requiring the importation of such [state] statutes into the federal civil rights scheme." Felder, 487 U.S. at 140, 108 S.Ct. at 2308.

Therefore, the Court holds that Plaintiff need not comply with the notice-of-claim provisions in the CTCA in order to allege a federal civil rights cause of action under § 1983.

C. The allegations against Defendants meet the Ninth Circuit's heightened pleading standard.

Plaintiff's claim includes an element of "unlawful intent," i.e., the element that Defendants were deliberately indifferent to his medical needs. Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 2323, 115 L.Ed.2d 271 (1991); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The Ninth Circuit requires plaintiffs in constitutional tort actions in which subjective intent is an element to satisfy a heightened pleading standard. Specifically, to survive a motion to dismiss, "plaintiffs must state in their complaint[s]...