Opinion
Civil No. 04CV1833 L (PCL).
January 19, 2006
REPORT AND RECOMMENDATION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
I. INTRODUCTION
On October 26, 2004, Alberto Vera Jimenez ("Plaintiff"), a state prisoner currently incarcerated at Calipatria State Prison, proceeding pro se and in forma pauperis ("IFP"), filed a First Amended Complaint ("FAC") pursuant to 28 U.S.C. § 1983. (Doc. No. 4) Defendants filed a motion to dismiss Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b) and 12(b)(6). After reviewing Plaintiff's complaint, Defendants' motion, Plaintiff's Opposition, Defendants' reply and all accompanying documents, the Court recommends that Defendants' motion be GRANTED in part and DENIED in part.
II. PROCEDURAL BACKGROUND
Plaintiff brings this action as a result of injuries inflicted upon him on July 18, 2004 by Calipatria Correctional Officers R. Sambrano and A. Alvarado. Plaintiff claims that Defendants R. Sambrano and A. Alvarado retaliated against him for asserting his First Amendment rights and used excessive force against him in violation of his Eighth Amendment rights. (See FAC at 2, 3) Plaintiff further asserts that Defendants Sambrano and Calipatria Correctional Sergeant E. Delgado violated his Eighth Amendment rights due to deliberate indifference to his medical condition. (Id. at 2, 4) Calipatria State Prison Warden S. Ryan purportedly violated Plaintiff's constitutional rights through a failure to train and/or supervise Defendants Sambrano and Alvarado. (Id. at 2) Finally, Plaintiff asserts a violation of his due process rights because of unanswered 602 forms. (Id. at 6) Plaintiff seeks injunctive relief and compensatory and punitive damages. (Id. at 8)
Defendants have filed a Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b) and 12(b)(6). (Doc. Nos. 14, 15). Defendants argue that Plaintiff's Complaint must be dismissed because he failed to exhaust all available administrative remedies before filing suit as required by 42 U.S.C. § 1997e(a). (See Defs.' PA's at 3-6) Alternatively, Defendants seek to dismiss Plaintiff's Complaint pursuant to FED. R. CIV. P. 12(b)(6) because Plaintiff fails to state a claim for retaliation, deliberate indifference, denial of due process or sufficient facts supporting injunctive relief. (Id. at 7-10)
III. FACTUAL BACKGROUND
On July 18, 2004, Defendants Sambrano and Alvarado ordered Plaintiff out of his cell. ( See FAC at 3) Plaintiff claims he refused to exit the prison cell because he felt Defendants were retaliating against him for previously reporting incidents of officer misconduct and aggression by Defendant Sambrano. (Id.) Instead of exiting the cell, Plaintiff purportedly requested to speak to ranking officer. (Id.)
Defendants denied the request and instead "charged" into the cell and attacked Plaintiff with "excessive violent force." (Id.) Plaintiff claims that Defendant Sambrano hit Plaintiff on the face resulting in a one and a half inch laceration. Additionally, he suffered a fractured nose and extensive bruising. (Id.) The medical report attached to Plaintiff's FAC dated July 18, 2004, confirms a one and a half inch laceration, facial redness and redness to both sides of Plaintiff's upper torso. (FAC, Exhibit A)
Plaintiff also claims that Defendant Sambrano, aware of Plaintiff's cornea transplant operation, excessively and continuously sprayed his eyes. (FAC at 4) Since the incident, Plaintiff claims the vision in his right eye is almost totally deteriorated. (Id.) On August 18, 2004, Plaintiff asserts that a Dr. Sands recommended he be sent to Alvarado Hospital because of his eye condition, however, upon reading his prison report they did not provide him the care he was needing. On August 21, 2004, a doctor at Alvarado Hospital apparently indicated that Plaintiff needed to see another doctor at UCSD Hospital. (FAC at 5) On September 1, 2004, Dr. Sands also recommended Plaintiff see a specialist at either UCSD or El Centro Hospitals.
Plaintiff does not indicate what chemical Defendant sprayed, although the medical report states that he was exposed to "O.C. Spray Exposure." (FAC, Exhibit A)
Interpreting this portion of Plaintiff's FAC is difficult. It is not clear whether Plaintiff was ever sent to any outside hospitals or if the doctors simply recommended he go. Plaintiff includes no other medical reports or documentation of these visits regarding his eye condition.
To address this conduct, Plaintiff claims he filed "countless" 602 forms but that none were returned. (FAC at 6) As to Defendant Delgado, Plaintiff asserts he "never did show up" and is therefore also accountable for Plaintiff's injuries. (Id.)
IV. DEFENDANTS' MOTION TO DISMISS PURSUANT TO 12(b)
Defendants move to dismiss Plaintiff's Complaint for failing to exhaust available administrative remedies pursuant to FED.R.CIV.P. 12(b), 12(b)(6) and 42 U.S.C. § 1997e(a).
A. Standard of Review per FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e(a)
Defendants first seek dismissal under the "non-enumerated" provisions of Fed.R.Civ.P. 12(b) and claim Plaintiff failed to exhaust available administrative remedies pursuant to 42 U.S.C. § 1997(e). The Ninth Circuit has held that "failure to exhaust nonjudicial remedies is a matter of abatement" not going to the merits of the case and is properly raised pursuant to a motion to dismiss, including a nonenumerated motion under FED.R.CIV.P. 12(b). See Ritza v. Int'l Longshoremen's Warehousemen's Union, 837 F.2d 365, 368-69 (9th Cir. 1988); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (finding a non-enumerated motion under Rule 12(b) to be "the proper pretrial motion for establishing nonexhaustion" of administrative remedies under 42 U.S.C. § 1997e(a)). Wyatt also holds that nonexhaustion of administrative remedies as set forth in 42 U.S.C. § 1997e(a) is an affirmative defense which defendant prison officials have the burden of raising and proving. Wyatt, 315 F.3d at 1117-1119. However, unlike under Rule 12(b)(6), "[i]n deciding a motion to dismiss for failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-1120 (citing Ritza, 837 F.2d at 369).
In so finding, the Ninth Circuit also made clear that unlike a motion for summary judgment, "dismissal of an action on the ground of failure to exhaust administrative remedies is not on the merits." Wyatt, 315 F.3d at 1119 (citation omitted). Thus, if the court finds that the prisoner has failed to exhaust nonjudicial remedies, "the proper remedy is dismissal of the claim without prejudice." Id. (citing Ritza, 837 F.2d at 368 n. 3).
B. Exhaustion of Administrative Remedies per 42 U.S.C. § 1997e(a)
Before the Prison Litigation Reform Act (" PLRA") was enacted on April 26, 1996, prisoners pursuing civil rights claims under 42 U.S.C. § 1983 were not required to exhaust administrative remedies before filing suit in federal court. See Patsy v. Bd. of Regents of Florida, 457 U.S. 496, 516 (1982). The PLRA amended 42 U.S.C. § 1997e(a) to provide, however, that "[n]o action shall be brought with respect to prison conditions under section 1983 . . . 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). "Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory." Porter v. Nussle, 534 U.S. 516, 532 (2002). 42 U.S.C. § 1997e(a) has been construed broadly to "afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case, id. at 525-26, and to encompass inmate suits about both general circumstances and particular episodes of prison life — including incidents of alleged excessive force.Id. at 532. Finally, "[t]he `available' `remed[y]' must be `exhausted' before a complaint under § 1983 may be entertained," "regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731, 738, 741 (2001);see also McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (finding that prisoner's civil rights action must be dismissed without prejudice unless prisoner exhausted available administrative remedies before he filed suit, even if he fully exhausts while the suit is pending).
The State of California provides its prisoners and parolees the right to administratively 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 available administrative remedies within this system, a prisoner must proceed through several levels: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections. Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing CAL. CODE REGS. tit. 15 § 3084.5). The third or "Director's Level" of review "shall be final and exhausts all administrative remedies available in the Department [of Corrections.]" See Cal. Dep't of Corrections Operations Manual, § 54100.11, "Levels of Review;" Barry, 985 F.Supp. at 1237-38; Irvin v. Zamora, 161 F. Supp. 2d 1125, 1129 (S.D. Cal. 2001).
C. Exhaustion Complications: Ngo v. Woodford Lira v. Herrera
While it is clear where a specific claim stands if it has been appealed through all three levels of administrative review — exhausted; or a claim that has never been appealed at the administrative level — unexhausted. The status of a claim that has failed to clear all three levels of review, but that can no longer be appealed due to administrative-level time-bars, is not intuitively clear. The Ninth Circuit, however, has held that the PLRA's exhaustion requirement is met once a plaintiff has "completed all avenues of administrative review open to him."Ngo v. Woodford, 403 F.3d 620, 631 (9th Cir. 2005). The defense must demonstrate that specific administrative remedies remain available to the plaintiff. Id. at 626. If none remain, the PLRA exhaustion requirement is met. See id. Accordingly, a claim that has failed to clear all three levels of review, but is time-barred, is an exhausted claim.
A further wrinkle to the PLRA is the so-called "mixed" complaint. Until recently, there was a split within the Ninth Circuit — including a split between district court judges in the Southern District of California — on how to apply section 1997e(a) to mixed complaints; a mixed complaint, such as Plaintiff's, is a lawsuit containing both exhausted and unexhausted claims. However, the Ninth Circuit Court of Appeals in November 2005 settled the debate with Lira v. Herrera. Lira v. Herrera, 427 F.3d 1164 (9th Cir. 2005). As set forth byLira, the new rule is "[w]hen a plaintiff has filed a `mixed' complaint and wishes to proceed with only the exhausted claims, a district court should simply dismiss the unexhausted claims when the unexhausted claims are not intertwined with the properly exhausted claims." Id. at 1175. "On the other hand, when a plaintiff's `mixed' complaint includes exhausted and unexhausted claims that are closely related and difficult to untangle, dismissal of the defective complaint with leave to amend to allege only fully exhausted claims, is the proper approach." Id. at 1176. D. Analysis
The Lira court further clarified when to grant leave to amend writing, "[l]eave to amend should be granted unless the pleading `could not possibly be cured by the allegation of other facts,' and should be granted more liberally to pro se plaintiffs." Lira, 427 F.3d at 1176 (quoting Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003)).
Defendants claim that Plaintiff admitted to not exhausting his administrative remedies. (Mot. at 6) Specifically, that Plaintiff states "The 602 appeal forms are not being answered and are way over due . . ." (Id.) Defendants argue that this is a concession by Plaintiff to nonexhaustion and is a valid ground for dismissal. (Id.) Defendants also claim that Plaintiff failed to "totally exhaust" all claims in the FAC as to all Defendants. (Id.) Specifically, Plaintiff submitted a CDC 602 inmate appeal form against Defendants Sambrano and Alvarado regarding the July 18, 2004 incident on August 31, 2004 but the appeal was screened as untimely. Further, Plaintiff did not file an administrative grievance against Defendants Delgado or Ryan for failure to train and/or supervise Defendants Sambrano or Alvarado. Likewise, Plaintiff did not file an administrative grievance for deliberate indifference to his medical needs or for denial of due process as a result of the July 18, 2004 incident. (Id.)
First, the Court must determine which claims are exhausted and which unexhausted. Plaintiff has made the following allegations in his FAC: (1) use of excessive force, against Defendants Sambrano and Alvarado; (2) retaliation, against Defendants Sambrano and Alvarado; (3) disregard of a medical condition,possibly against Defendant Sambrano; (4) deliberate indifference to a medical condition, against Defendant Delgado; and (5) failure to properly train/supervise, against Defendant Ryan. However, Plaintiff has failed to appeal allegations two through five, and it is clear administrative relief has not been exhausted.
On the other hand, Plaintiff did appeal the alleged use of excessive force. Plaintiff's appeals for the use of excessive force were denied as untimely at the first level of administrative review. As discussed above, failing to complete all three levels of review does not mean the claims are unexhausted. "Ngo, 403 F.3d at 626. Defendants must demonstrate that other avenues of administrative review remain open to Plaintiff: they have failed to do so. Defendants write, Plaintiff's "appeals were screened out for being untimely and there is no evidence he took any steps to explain why he was unable to timely file." (Reply at 1) This statement seems to imply Plaintiff may be able to appeal the rejection of his filing; however, the burden is on Defendants, if an avenue of administrative review remains open to Plaintiff they should have plainly stated so. Thus, Plaintiff's excessive force claim has been exhausted.
The Court must next determine the relationship between the exhausted claims (excessive force) and the unexhausted claims (all other claims): how intertwined are the claims; how easily can the exhausted claims be separated out? Lira, 427 F.3d at 1175-76. The Ninth Circuit Court of Appeals in Lira, when explaining this step, gives further instruction on spotting easily separated claims by quoting Ortiz: "1983 suits `routinely seek to address more than one grievance — sometimes a laundry list of grievances — relating to different events or circumstances." Id. at 1175 (citing Ortiz v. McBride, 380 F.3d 649, 661 (9th Cir. 2004)). Yet an even better way to understand the task at hand is to understand the aim of the Ninth Circuit: to avoid "an unexhausted claim [being] implicitly decided while addressing an exhausted one." Id. at 1176. Bearing this all in mind, Plaintiff's claims are too closely intertwined.
First, all the claims stem from the same incident: the forcible removal of Plaintiff from his cell. If each claim were heard separately, evidence of the incident would be necessary for each claim. Second, and more importantly, a decision on the excessive force claim will likely decide the unexhausted claims. For example, if a fact-finder decides Defendants Sambrano and Alvarado did not use excessive force, then such a finding severely limits — if not precludes — Plaintiff's ability to show Defendants were not acting in the furtherance of legitimate penological goals, a crucial element to Plaintiff's retaliation claim. Similarly, Plaintiff's case against Defendant Ryan for failure to train and supervise would be dealt a serious blow if the excessive force claim failed; the use of excessive force in the same incident seems to be the crux of Plaintiff's case. As the exhausted and unexhausted claims are too intertwined, following Lira, the Plaintiff's complaint must be dismissed with leave to amend. Id. Accordingly, the Court recommends the Defendants' motion be GRANTED.
The Court's recommendation for Defendant's Rule 12(b) motion to be GRANTED is subject to change based on subsequent legal findings.
V. DEFENDANTS' MOTION TO DISMISS PURSUANT TO 12(b)(6)
A. Standard of Review per FED.R.CIV.P. 12(b)(6)Defendants also seek to dismiss Plaintiff's complaint on a Rule 12(b)6 motion. A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint.Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal of a claim under this rule is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Navarro, 250 F.3d at 732. Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); See Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law."). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory.Robertson, 749 F.2d at 534.
In reviewing a motion to dismiss under 12(b)(6), the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party.Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations.Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987);Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents incorporated by reference in the complaint, and matters of which the Court takes judicial notice. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 2003); Thompson, 295 F.3d at 895.
B. Analysis of Plaintiff's Claims
1. Plaintiff's First Amendment Retaliation Claim
The Constitution provides protections against "deliberate retaliation" by prison officials against an inmate's exercise of his right to petition for redress of grievances. Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Because retaliation by prison officials may chill an inmate's exercise of his legitimate First Amendment rights, such conduct is actionable even if it would not otherwise rise to the level of a constitutional violation. Thomas v. Carpenter, 881 F.2d 828, 830 (9th Cir. 1989). However, there must be a causal connection between the allegedly retaliatory conduct and the action that purportedly provoked the retaliation. Thus, "timing can properly be considered as circumstantial evidence of retaliatory intent."Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995). A Plaintiff must also show that the protected conduct was a "substantial" or "motivating" factor in the Defendant's decision to act. Soranno's Gasco, 874 F.2d at 1314;Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).
To withstand a motion for summary judgment, a Plaintiff suing prison officials pursuant to 42 U.S.C. § 1983 for retaliation must allege sufficient facts to create a triable issue of fact as to whether: (1) such retaliation occurred as a result of the prisoner exercising his constitutional rights; (2) the retaliatory action was not done in the furtherance of "legitimate penological goals, such as preserving institutional order and discipline," Barnett v. Centoni, 31 F.3d 813, 815-816 (9th Cir. 1994) (per curiam); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); and (3) in some cases, Defendant's actions had a chilling effect. See Rhodes v. Robinson, 380 F. 3d 1123 (9th Cir. 2004); Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000); Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997).
Here, Plaintiff alleges that Defendants Sambrano and Alvarado ordered him out of his cell in retaliation for filing grievances against Defendant Sambrano. (FAC at 3) Defendants respond that Sambrano's order to Plaintiff to exit his cell is not an "adverse action." (Defs.' PA's at 7) Furthermore, Defendants argue, Plaintiff has failed to allege that Defendants' conduct was not narrowly tailored to advance a legitimate correctional goal and, therefore, Plaintiff's retaliation claim fail. (See Id.) The Court agrees. While Plaintiff's legal theory is sound, he has failed to plead essential facts. Even given the deference owed to a plaintiff on a Rule 12(b)(6) motion and the relaxed expectations Plaintiff garners as pro se party, Plaintiff's retaliation is simply a bare allegation. Prisoners are ordered from their cells all the time, Plaintiff needed to give some hint to as why Sambrano's order was linked to Plaintiff having filed a grievance against him. Similarly, Plaintiff needed to address why the Defendants, when they ordered him out of his cell, were not acting in furtherance of legitimate penological goals. Accordingly, the Court finds Plaintiff has failed to state a retaliation claim against Defendants Sambrano and Alvarado.
2. Plaintiff's Due Process Claim
Prisoners have a constitutional right to petition the government for the redress of their grievances, which includes a reasonable right to access to the courts. Hudson v. Palmer, 468 U.S. 517, 523 (1984). However, "[t]here is no legitimate claim of entitlement to a [prison] grievance procedure." Mann v. Adams, 855 F2d 639, 640 (9th Cir. 1988). Because Plaintiff has no constitutional entitlement to the prison grievance procedures, the Defendants alleged disregard for the grievance procedures, their arbitrary denials, or their mishandling of Plaintiff's grievances creates no actionable section 1983 due process claim. Id. Therefore, the Court finds that Plaintiff has failed to state a due process claim based on the failure to provide him access to the prison grievance procedures.
3. Eighth Amendment Claim
Prison officials violate a prisoner's Eighth Amendment right to be free from cruel and unusual punishment if they are deliberately indifferent to the prisoner's serious medical needs.Estelle v. Gamble, 429 U.S. 97, 106 (1976); Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989). "Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury state a cause of action under § 1983."Estelle, 429 U.S. at 105. "This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs, or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Id. at 104-05. (footnotes omitted).
A "serious" medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain." Id. at 104. Thus, the "existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain are examples of indications that a prisoner has a `serious' need for medical treatment." McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000).
To recover for denial of medical treatment, the prisoner must plead and prove: (1) the prisoner suffered from a serious medical condition; and (2) the prison officials were "deliberately indifferent" to the prisoner's medical needs. Wilson v. Seiter, 501 U.S. 294, 297 (1991). The indifference to medical needs must be substantial; inadequate treatment due to malpractice, or even gross negligence, does not amount to a constitutional violation.Estelle, 429 U.S. at 106; Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002). In addition, differences in judgment between an inmate and prison medical personnel regarding appropriate medical diagnosis and treatment are not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
Defendants argue that even though Plaintiff claims he did not get the medical care he needed after the July 18, 2004 incident, he does not indicate what that treatment was or who was supposed to provide it. Neither does Plaintiff allege any of the Defendants knew he was supposed to receive such medical treatment but intentionally failed to provide it.
Defendants are right, Plaintiff's complaint does not provide enough information. From the complaint one can begin to piece together a deliberate indifference claim: that Plaintiff was not sent to a hospital until a month after the incident; that problems with his right eye were exacerbated by the altercation. (FAC at 3-5) However, it is unclear which Defendant Plaintiff believes was deliberately indifferent to his medical needs. Plaintiff writes, that Defendant Delgado "refuse(sic) to respond to the urgent action of retaliation against a(sic) inmate." (Id. at 2) Possibly, with this statement Plaintiff intends to point his finger at Defendant Delgado, essentially saying he should have attended to his medical needs urgently after the incident. Then again, Plaintiff may only mean Defendant Delgado should have responded urgently to halt the altercation. Furthering the complaint's ambiguity, none of the four Defendants are mentioned when discussing Plaintiff's need for hospitalization. (See Id. at 3-5) As the Court can not match a Defendant to Plaintiff's claim, the Court has no choice but to find Plaintiff has failed to state an Eighth Amendment claim for deliberate indifference to a serious medical need.
Plaintiff mentions a Dr. Sands, and if the Court had to hazard a guess at who Plaintiff intended to accuse of deliberate indifference, it would be he. (FAC at 4-5) However, Dr. Sands is not a defendant in the current action.
VI. PLAINTIFF'S REQUEST FOR INJUNCTIVE RELIEF
One remedy Plaintiff seeks is an injunction. The PLRA provides:
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.18 U.S.C. § 3626(a)(1)(A).
"A state law enforcement agency may be enjoined from committing constitutional violations where there is proof that officers within the agency have engaged in a persistent pattern of misconduct." Thomas v. County of Los Angeles, 978 F.2d 504, 508 (9th Cir. 1992); see also Walters v. Reno, 145 F.3d 1032, 1048 (9th Cir. 1998). However, injunctive relief is appropriate only when "irreparable injury" is likely. City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). The Supreme Court has repeatedly cautioned that absent a threat of immediate and irreparable harm, the federal courts should not enjoin a state to conduct its business in a particular way." Hodgers-Durgin v. De la Wina, 199 F.3d 1037, 1042 (9th Cir. 1999).
Defendants argue, that "[t]here are no allegations Defendants continue to or will act in any way to violate Plaintiff's constitutional rights." (Defs.' PA's at 10) Further, that Plaintiff has failed "to meet the high standard of proof necessary to obtain injunctive relief;" that his request is "vague and ambiguous;" and that Plaintiff's request is "not the least intrusive means to correct any alleged violation of a federal right." (Id.) Plaintiff writes, that he desires injunctive relief to prevent Defendants "to get any where near the Plaintiff, and not to retaliate against inmate Alberto Vera for maintain(sic) this allegation." (FAC at 8) Unfortunately, he provides the Court with little more. Plaintiff fails to allege a pattern of abusive behavior — the Court is only aware of the one incident, and he fails to specify the exact irreparable harm — further damage to his vision, perhaps. As such, Plaintiff has failed to meet the burden for injunctive relief. Therefore, the Court recommends Plaintiff's request for injunctive relief be DENIED.
VII. CONCLUSION
In summary, the Court recommends DENYING Plaintiff's request for injunctive relief. The Court recommends GRANTING Defendants' Rule 12(b)(6) motion and dismissing Plaintiff's First Amendment retaliation claim, Due Process claim, and Eighth Amendment claim for deliberate indifference to a serious medical need. However, the Court recommends DENYING Defendants' motion to dismiss Plaintiff's Eighth Amendment claim for excessive force. As discussed above, Plaintiff has fully exhausted his administrative remedies with respect to his excessive force claim. Although earlier the Court demonstrated how Plaintiff's exhausted claim was too intertwined with his unexhausted claims, that is no longer a concern — the unexhausted claims have been recommended for dismissal.