Boyce v. Fox
| Decision Date | 27 January 2017 |
| Docket Number | No. 2:14-cv-1743 KJM KJN P,2:14-cv-1743 KJM KJN P |
| Court | U.S. District Court — Eastern District of California |
| Parties | DONNELL BOYCE, Plaintiff, v. MICHAEL FOX, et al., Defendants. |
Plaintiff is a state prisoner, proceeding through counsel. Defendants move to dismiss this action because they contend it appears from the face of the second amended complaint and its exhibits that plaintiff failed to exhaust his administrative remedies prior to filing the instant action. Defendants also move to dismiss the action based on the following three grounds: (1) defendant Fox did not personally violate plaintiff's constitutional rights; (2) defendant Fox is entitled to qualified immunity; and (3) plaintiff failed to state a deliberate indifference claim against defendants Kim, Wong, and Ogbodo. As set forth below, the undersigned recommends that defendants' motion to dismiss be granted in part and denied in part.
Plaintiff is an African American inmate housed at Deuel Vocational Institute ("DVT") in August of 2011. Plaintiff alleges he began suffering from flu-like symptoms in early January of 2012, including a fever and drastic weight loss: reducing from 207 to 130 pounds in the span of about a week. (ECF No. 37 at 5.) Plaintiff also experienced severe back pains, which prevented him from laying down, as well as numbness in his legs, impaired mobility, and severe headaches. Plaintiff was allegedly not involved in any physical altercation or accident, slip or fall, that would have explained plaintiff's symptoms. Plaintiff began requesting medical treatment on or about January 4, 2012. In response to plaintiff's complaints, Dr. Wong prescribed acetaminophen with codeine phosphate (Tylenol), guaifenesin-dextromethorphan (Robitussin), and sunatriptan (Migraine medication). On or about January 17, 2012, plaintiff went "man down," and RN Ogbodo gave plaintiff a hydrocodone shot for his excruciating pain. The pain returned after 11 hours, and RN Ogbodo gave plaintiff two more hydrocodone shots. Plaintiff claims that the pain and previous symptoms returned almost immediately. Plaintiff alleges that his relationship with Dr. Wong was "rocky and harried," and that Dr. Wong became defensive when plaintiff demanded more rigorous testing, plaintiff arguing that his symptoms were shocking based on his prior great physical shape and his experience and training as a physical therapist. Dr. Wong explained that plaintiff's physical therapy experience could not equate to Dr. Wong's qualification as a medical doctor, and that the prescribed medication and treatment should suffice. (ECF No. 37 at 6.)
Dr. Wong allegedly did not order an x-ray of plaintiff's lumbar spine until February 24, 2012. Dr. Wong opined that the x-ray results showed plaintiff's spine was in a healthy condition, despite plaintiff's objections and pleadings. Plaintiff attempted to obtain further medical tests through the appeals process, and was provided an x-ray of his hip.
Plaintiff went "man down" again on May 1, 2012. Plaintiff states that a correctional officer and two other DVI personnel (likely staff nurses from the medical ward) approached plaintiff, but plaintiff claims the nurses refused to transport plaintiff to medical, refused to treat plaintiff in his cell because he was seen by a physician earlier that day, and claimed plaintiff was faking his injury so that he could be given more prescription drugs. (ECF No. 37 at 6.)1 Plaintiffallegedly remained on the floor of his cell, missing chow, through the night until the feeling in his legs returned.
On May 16, 2012, plaintiff was transferred to Salinas Valley State Prison ("SVSP"). On May 24, 2012, plaintiff again went "man down," and allegedly experienced five days of lower back extremity paralysis, including an inability to walk, loss of sensation from the waist down, and urinary and fecal incontinence. On May 30, 2012, plaintiff was hospitalized and provided an MRI of his lumbar spine, which showed a large epidural mass at the L5-S1 level with significant bone destruction, and significant bony destruction confirmed both on MRI and CT scanning of S1. The spine deterioration was diagnosed as advanced stages of coccidioidomycosis. On May 31, 2012, plaintiff underwent surgery at Stanford University Medical Center where his spine was treated and supported with pedicle screws. On June 28, 2012, plaintiff underwent a second surgery, involving decompression and debridement of the operated area. Medical staff at Stanford opined that plaintiff would be unable to lift more than 25 pounds, requiring the assistance of a cane for the rest of his life, and is hyper-vulnerable to paralysis if his body experiences a traumatic blow. (ECF No. 37 at 7.)
Plaintiff includes three causes of action: First, plaintiff alleges that defendants Fox and Does 1 - 5 failed to implement policies and procedures to protect plaintiff from the debilitating effects of coccidioidomycosis, also known as "Valley Fever," knowing that inmates were susceptible to the disease, and in deliberate indifference to plaintiff's health. Second, plaintiff alleges that defendant Dr. Wong, as plaintiff's primary care physician, was aware that plaintiff lost close to 80 pounds in one week, was experiencing excruciating back pain, had numbness in his legs, had a fever, and had experienced no blunt-force trauma to explain such symptoms and was historically an extremely healthy individual. Plaintiff contends that defendant Dr. Wong was deliberately indifferent to plaintiff's serious medical needs, and failed to order blood tests, an MRI, or refer plaintiff to a specialist, to determine the etiology of plaintiff's drastic weight loss,and continuous complaints of leg numbness and excruciating back pain. Third, plaintiff alleges that defendant Ogbodo failed to assist plaintiff when he went "man down" on May 1, 2012, despite knowing plaintiff had been suffering from excruciating back pain, immobility, fever, drastic weight loss, and numbness in his lower extremities.
Plaintiff provides a patient education form, dated August 2013, that identifies the following symptoms of Valley Fever: fever, cough, tiredness, headaches, rash, joint/muscle aches, night sweats, weight loss/lack of appetite, pneumonia. (ECF No. 37 at 13.)
Plaintiff does not disclose his age, but the CDCR Inmate Locator website lists plaintiff's current age as 36. A previously-provided medical record reflects that after he was transferred to SVSP, plaintiff's age was recorded as 32 on July 4, 2012. (ECF No. 29 at 9.)
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Reiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984).
The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of confinement, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532.
Proper exhaustion of available remedies is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules." Woodford v. Ngo, 548 U.S. 81, 95-96 (2006). For a remedy to be available, there must be the "possibility of some relief. . . ." Booth, 532 U.S. at 738. Relying on Booth, the Ninth Circuit has held:
[A] prisoner need not press on to exhaust further levels of review once he has received all "available" remedies at an intermediate level of review or has been reliably informed by an administrator that no remedies are available.
Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).
A motion asserting an affirmative defense such as failure to exhaust may be brought under...
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