Opinion
CASE NO. 1:15-cv-01916-MJS (PC)
09-19-2017
FRANK BACA , Plaintiff, v. MARTIN BITER, et al., Defendants.
ORDER DENYING CDCR'S MOTION TO QUASH SUBPOENA
(ECF No. 20)
ORDER GRANTING PLAINTIFF'S MOTION TO FILE SECOND AMENDED COMPLAINT AND ORDER AFTER SCREENING OF SECOND AMENDED COMPLAINT
(ECF No. 21)
CLERK OF COURT TO FILE EXHIBIT A, FILED AT ECF NO. 21-3, AS "SECOND AMENDED COMPLAINT"
CDCR TO RESPOND TO SUBPOENA WITHIN TEN (10) DAYS
PLAINTIFF TO FILE THIRD AMENDED COMPLAINT WITHIN THIRTY (30) DAYS OF RECEIVING RESPONSE TO SUBPOENA
I. Procedural History
Plaintiff is a state prisoner proceeding in forma pauperis with appointed counsel in this civil rights action brought pursuant to 42 U.S.C. § 1983. He has consented to Magistrate judge jurisdiction. (ECF No. 5.) No other parties have appeared.
On November 15, 2016, while Plaintiff was proceeding pro se, the Court screened his first amended complaint ("FAC") and found that it stated cognizable claims against Defendant Does 1-3, medical professionals at Kern Valley State Prison ("KVSP"), and Does 4-18, members of the Headquarters Utilization Management Committee ("HUMC") employed by the California Department of Corrections and Rehabilitation ("CDCR") for failing to treat Plaintiff for diagnosed Hepatitis C virus ("HCV") in violation of the Eighth Amendment. (ECF No. 10.)
The Court opened discovery for the limited purpose of identifying the names of the Doe Defendants. (Id.) Plaintiff was directed to inform the Court of the documents needed from CDCR or the prison to identify the Doe Defendants. (Id.)
On March 3, 2017, Plaintiff, through his newly appointed counsel, filed a request for the issuance of a subpoena duces tecum directed to Plaintiff's current institution, High Desert State Prison ("HDSP"), to produce portions of Plaintiff's medical record, and another to CDCR for a complete roster of HUM Committee members from January 1, 2010 to January 7, 2015. (ECF No. 13.) On April 25, 2017, the Court granted in part Plaintiff's request for the names of the HUMC members, and issued a subpoena for the names of the individuals currently serving on the HUMC since they had been sued in their official capacities. (On April 26, 2017, Plaintiff informed the Court he had received his medical record from HDSP, and so requested that that subpoena be voided. (ECF No. 16.) His latter request was granted. (ECF No. 17.))
On June 12, 2017, the CDCR, as a party in interest, filed a motion to quash the subpoena for the names of the HUMC members. (ECF No. 20.) Plaintiff did not file an opposition; rather, on July 7, 2017, he filed a motion for leave to file a second amended complaint ("SAC"), stating therein that the proposed SAC would render the CDCR's motion to quash moot. (ECF No. 21.) The CDCR filed an opposition. (ECF No. 22.) Plaintiff filed a reply. (ECF No. 23.) Both matters are submitted and will be addressed here without oral argument. Local Rule 230(l).
II. Motion to Amend
A. Legal Standard
A party may amend its pleading once as a matter of course at any time before a responsive pleading is served and up to twenty-one days after service of a responsive pleading. Fed. R. Civ. P. 15(a)(1)(B). Otherwise, a party may amend only by leave of the court or by written consent of the adverse party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). In this case, Plaintiff has already amended once, pursuant to the Court's screening order. (See ECF No. 6.) Therefore, Plaintiff may not file a SAC without leave of court. Furthermore, as Plaintiff is a prisoner proceeding in forma pauperis, under 28 U.S.C. § 1915A(a), the Court is required to screen his complaint prior to service.
Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. As a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).
"Rule 15(a) is very liberal and leave to amend 'shall be freely given when justice so requires.'" AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). In determining whether to grant leave to amend, courts generally consider four factors: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, and (4) futility of amendment. In re Korean Airlines Co., Ltd., 642 F.3d 685, 701 (9th Cir. 2011) (citing Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994)) (quotation marks omitted); also Foman v. Davis, 371 U.S. 178, 182 (1962); Waldrip v. Hall, 548 F.3d, 729, 732 (9th Cir. 2008); AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006); Eminence Capital, LLC, 316 F.3d at 1052.
In evaluating whether a proposed amendment is futile, the Court must determine whether the amendment would withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and in making this evaluation, the Court is confined to review of the proposed amended pleading. Nordyke v. King, 644 F.3d 776, 788 n.12 (9th Cir. 2011) (citing Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (reh'g en banc Nordyke v. King, 681 F.3d 1041 (9th Cir. 2012).
Prejudice to the opposing party carries the greatest weight, and absent prejudice, or a strong showing of any of the remaining factors, there exists a presumption in favor of granting leave to amend. Eminence Capital, LLC, 316 F.3d at 1052 (quotation marks omitted).
B. Allegations in Plaintiff's FAC
At the time the FAC was filed, Plaintiff was incarcerated at KVSP in Delano, California and infected with genotype 1 HCV. He sued Does 1 through 3, physicians and primary care providers ("medical staff") employed by the California Department of Corrections and Rehabilitation ("CDCR") at KVSP, and Does 4 through 18, members of the Headquarters Utilization Management Committee ("HUMC") employed by CDCR (collectively, "Defendants"). He alleged: Does 1 through 3 were each directly responsible for Plaintiff's medical care. Does 4 through 18 were responsible for the implementation of CDCR policies regarding inmate medical care. Defendants violated Plaintiff's right to be free from inhumane conditions of confinement under the Eighth Amendment by refusing to prescribe Plaintiff Harvoni (or a similar medication) even though it has been shown to be 99% effective in curing patients with HCV. Although not directly involved in Plaintiff's treatment, Does 4 through 18 violated Plaintiff's rights by promulgating a policy dictating that inmates may receive treatment for HCV only after their disease has advanced to at least stage 3. Plaintiff alleges that individuals at stage 3 have already begun to experience cirrhosis of the liver and/or liver failure.
The undersigned found Plaintiff's complaint stated cognizable claims against Does 1-3 in their personal capacities and Does 4-18 in their official capacities.
C. Allegations in Proposed SAC
Plaintiff is now incarcerated at HDSP. He names as Defendants Drs. Schaeffer and Akanno of KVSP (in their individual capacities), Dr. Bzoskie of HDSP (in his individual and official capacity), and Does 1-6. Plaintiff also sues the HUMC (in its official capacity) and Does 7-20, current or former members of the HUMC (in their individual capacities.)
The underlying allegations regarding HCV and the available treatment options remain as described in the Court's previous screening Orders and need not be repeated herein. Otherwise, Plaintiff's essential allegations may be summarized as follows:
On May 21, 2014, Plaintiff was seen by Dr. Schaeffer for an annual exam. Although Dr. Schaeffer knew of Plaintiff's illness through of review of his medical history, she did not order treatment for his HCV. On January 7, 2015, Plaintiff underwent an in-depth medical assessment in which his medical history, tests, and symptoms were discussed and lab tests were ordered. On February 25, 2015 Plaintiff saw a nurse to discuss his test results. It was determined that Plaintiff was ineligible for HCV treatment. On March 8, 2015, Plaintiff was seen by a nurse practitioner regarding an appeal he filed concerning his HCV treatment. He was again denied treatment. On May 28, 2015, Plaintiff saw Dr. Akanno for a wellness visit and tests were again ordered. Plaintiff brought up his HCV symptoms with Dr. Akanno, however he was again refused treatment. On June 15, 2015, Dr. Akanno reviewed Plaintiff's test results, and Plaintiff was again denied treatment. On December 21, 2015, after he was transferred to HDSP, Plaintiff was seen by Dr. Bzoskie, who also failed to prescribe Plaintiff medication to treat his HCV. Does 1-6 are other medical professionals, currently unknown to Plaintiff, who were involved in his treatment or denial thereof at either KVSP or HDSP.
Does 7-20 are members of the HUMC. This committee is responsible for developing policies and procedures to ensure statewide adherence to a utilization management program. As members of the HUMC, these Defendants develop California Correctional Health Care Services ("CCHCS") policies. The HUMC members know that HCV constitutes a serious medical need that, left untreated, can lead to permanent liver damage and death. Despite this, these Defendants set forth a policy which has the intended effect of denying Plaintiff access to effective treatments for his HCV.
Plaintiff alleges four causes of action: 1) a claim for damages against Defendants Schaeffer, Akanno, and Bzoskie and doctor Does 1-6 for cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments; 2) a claim for damages against HUMC members Does 7-20 for cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments; 3) a claim for injunctive relief against the HUMC, Dr. Bzoskie, and Does 1-6; and 4) a claim for damages for negligence against all Defendants.
D. Discussion
Plaintiff argues that amendment is appropriate because he now has the benefit of counsel who can identify additional claims arising from Plaintiff's allegations.
The CDCR, as a party in interest, argues that Plaintiff's motion to amend should be denied as futile with regard to the second, third, and fourth causes of action because the claims would be subject to dismissal for failure to state a claim, Eleventh Amendment immunity, qualified immunity, and failure to exhaust administrative remedies.
At the pleading stage, Plaintiff's allegations that Defendants were deliberately indifferent to a substantial risk to Plaintiff's health when they refused to prescribe medication to treat his HCV and/or enacted blanket policies intended to deny treatment to an inmate in Plaintiff's position are more than sufficient to state a claim under the Eighth Amendment. While the HUMC itself is immune from suit under the Eleventh Amendment, Wolfson v. Brammer, 616 F.3d 1045, 1065-66 (9th Cir. 2010), dismissal of the entire SAC on these grounds is not warranted. As Plaintiff's allegations at the pleading stage are sufficient to allege constitutional violation, and there are insufficient facts from which the Court can determine that the HUMC members' actions were reasonable under clearly established law, a finding of qualified immunity cannot be made at this time. Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) ("The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'") (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
The CDCR argues that since Plaintiff does not plead compliance with California's Tort Claims Act, his state law negligence claim is barred for failure to exhaust administrative remedies. The state Tort Claims Act requires that a tort claim against a public entity or its employees be presented to the California Victim Compensation and Government Claims Board ("the Board") no more than six months after the cause of action accrues. Cal. Govt. Code §§ 905.2, 910, 911.2, 945.4, 950-950.2 (West 2009). Presentation of a written claim, and action on or rejection of the claim are conditions precedent to suit. State v. Super. Ct. of Kings Cty. (Bodde), 90 P.3d 116, 124 (2004); Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995).
Plaintiff seeks leave to amend his complaint to plead facts showing that he has complied with the Act. (ECF No. 23 at 4.) That request will be granted. Accordingly, Defendant's challenge based on non-compliance with the California Tort Claims Act will be denied without prejudice.
The Court will proceed to screening Plaintiff's SAC.
E. Screening of SAC
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
Again, inasmuch as the substance and legal standards underlying Plaintiff's claims remain unchanged, the Court will not repeat the analyses contained in its previous screening. For the reasons set forth in that order (ECF No. 13), Plaintiff is entitled to proceed on his Eighth Amendment medical indifference claims against Drs. Schaeffer, Akanno, and Bzoskie for denying Plaintiff treatment for his HCV. Plaintiff may proceed against these Defendants in their individual capacities only.
Likewise, Plaintiff will be permitted to proceed against Does 7-20 in their individual capacities for implementing a policy that they knew or should have known would place an inmate in Plaintiff's situation at risk of suffering serious harm.
However, as the CDCR correctly points out, the Eleventh Amendment precludes suits against the HUMC itself. Therefore, that claim will be dismissed without leave to amend. Furthermore, Plaintiff's general allegations against Does 1 -6 are insufficient to link these Defendants to the alleged violations. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (plaintiff may not attribute liability to a group of defendants, but must "set forth specific facts as to each individual defendant's" deprivation of his rights.) Plaintiff will be granted leave to amend his claims against Does 1-6.
The proposed SAC omits Plaintiff's original claim against the HUMC members in their official capacities. The Court assumes this is error since, to the extent Plaintiff seeks injunctive relief in the form of a change in policy, only those committee members currently serving or serving at the time the injunctive relief is granted (if it is granted) would be able to effectuate such a change. It is possible that the HUMC members who implemented the offending policy are no longer serving, or that the members currently serving will not be serving at the conclusion of this case. Suing these members in their official capacities allows for their replacements to be automatically substituted into the lawsuit should they step down or otherwise relinquish their positions of power. Hafer v. Melo, 502 U.S. 21, 25 (1991) (because a suit against a state official in his or her official capacity is treated as a suit against the state, in which the "real party in interest . . . is the governmental entity and not the named official," when such named official leaves office, "[his or her] successor automatically assumes [his or her] role in the litigation.") Plaintiff will thus be given leave to amend his complaint to re-plead his claim against the HUMC members in their official capacities.
And, as explained above, Plaintiff will also be given an opportunity to amend his complaint to plead compliance with the Tort Claims Act with regard to his negligence claim.
III. Motion to Quash
A. Legal Standard
Rule 45(c)(3)(A)(iii) mandates quashing a subpoena if it "requires disclosure of privileged or other protected matter, if no exception or waiver applies[.]" Jennings v. Moreland, No. CIV S-08-1305 LKK, 2012 WL 761360, at *1 (E.D. Cal. Mar. 6, 2012).
In civil rights cases brought under section 1983, questions of privilege are resolved by federal law. Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 511 F.2d 192, 197 (9th Cir. 1975). "State privilege doctrine, whether derived from statutes or court decisions, is not binding on federal courts in these kinds of cases." Kelly v. City of San Jose, 114 F.R.D. 653, 655-56 (N.D. Cal. 1987). "Federal common law recognizes a qualified privilege for official information." Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (citing Kerr, 511 F.2d at 198.) The discoverability of official documents should be determined under the "balancing approach that is moderately pre-weighted in favor of disclosure." Kelly, 114 F.R.D. at 661. The party asserting the privilege must properly invoke the privilege by making a "substantial threshold showing" that the privilege should apply. Id. at 669-70.
B. CDCR's Arguments
The CDCR moves to quash the subpoena seeking names of the HUMC members on three grounds: 1) the information sought is irrelevant; 2) it is protected by the official information privilege; and 3) it is protected by the deliberative process privilege. As to the first point, the CDCR argues that since the HUMC works as a unit, no single HUMC member can appropriately respond to Plaintiff's request for injunctive relief and so the identities of each member are irrelevant. On the second point, CDCR argues that the identities of the HUMC committee members, all private citizens, must be protected to ensure their safety and encourage their open and candid participation in the committee. To their third point, CDCR argues that "it is clear" Plaintiff seeks the names of the individual HUMC members in order to obtain information regarding their individual advisory or "pre-decisional" opinions as well as information about the HUMC decision-making process.
C. Discussion
The CDCR argues that the names of the individual HUMC members are irrelevant since no single person can effectuate policy. However, as the CDCR itself pointed out, HUMC as a unit is immune from suit. ]f Plaintiff is foreclosed from proceeding against the HUMC members, he would be foreclosed from pursuing a 1983 claim for promulgation an unconstitutional policy. Regardless, Plaintiff has indicated an intent to amend his complaint to include claims against the HUMC members in their individual capacities. E ach member's name is therefore relevant.
CDCR's arguments regarding privilege are not persuasive. "[A] party moving to quash a subpoena on the grounds of confidentiality or privilege [is required] to provide detailed, case-specific reasons why a complete bar to the disclosure of relevant material is the only viable option in responding to the subpoena." Jennings, 2012 WL 761360 at *2. The CDCR has not done that here. The CDCR claims generally that disclosing the names of HUMC members could subject them to harassment, threats from inmates, or other adverse actions, thereby chilling them from effectively performing their duties. However, a party resisting disclosure on privilege grounds "must specifically describe how disclosure of the requested documents in that particular case . . . would be harmful." Chism v. Cty. of San Bernadino, 159 F.R.D. 531, 535 (C.D. Cal. Dec. 23, 1994) (emphasis added). A general assertion that HUMC members would be chilled from performing their job functions if their identities were disclosed is insufficient. Furthermore, as explained above, the HUMC members are properly named as Defendants in this action, and thus, the need to identify and serve them outweighs any interest of the CDCR in keeping their identities secret.
Finally, the deliberative process privilege exempts from discovery information reflecting opinions, recommendations, and deliberations comprising part of a process by which government decisions and policies are formulated. FTC v. Warner Comm's., Inc., 742 F.2d 1156, 1161 (9th Cir.1984). The purpose of the privilege is to shield from public scrutiny any ideas, thoughts, or opinions that are expressed in the process of formulating governmental policies. Assembly of California v. United States Dep't of Commerce, 968 F.2d 916, 920 (9th Cir. 1992). The key inquiry in determining whether particular information is "deliberative" is whether disclosure of the information would expose the decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions. Carter v. United States DOC, 307 F.3d 1084, 1090 (9th Cir. 2002). At this stage in the litigation, Plaintiff seeks not evidence of the HUMC deliberations, but rather the names of the HUMC members. He seeks not to challenge the deliberative process, but the conclusion reached. The deliberative process privilege does not apply.
For the foregoing reasons, the CDCR's motion to quash will be denied, and the CDCR will be directed to respond as ordered in ECF No. 15 within ten days.
(Among the relief sought in Plaintiff's SAC is a possible preliminary injunction request. (ECF No. 21-3 at 11.) He has not, however, even addressed, much less demonstrated compliance with, the prerequisites to such relief Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008), so the Court will not analyze the issue at this juncture of the pleadings.)
IV. Conclusion and Order
Based on the foregoing, it is HEREBY ORDERED that:
1. The CDCR's motion to quash the subpoena duces tecum (ECF No. 20) is DENIED;IT IS SO ORDERED.
2. The CDCR is ordered to serve a response to the subpoena duces tecum on Plaintiff's counsel within ten (10) days of this order;
3. Plaintiff's motion to amend (ECF No. 21) is GRANTED;
4. The Clerk of Court is directed to file the document filed at ECF No. 21-3 as a separate docket entry entitled "SECOND AMENDED COMPLAINT"; and
5. Plaintiff is DIRECTED to file a third amended complaint identifying, to the extent possible, the Doe Defendants by name and curing the deficiencies noted herein within thirty (30) days of receiving the CDCR's response to the subpoena duces tecum.
Dated: September 19, 2017
/s/ Michael J . Seng
UNITED STATES MAGISTRATE JUDGE