Opinion
2:20-cv-1665 JAM KJN P
12-13-2021
BILLY DRIVER, Plaintiff, v. KERN COUNTY SUPERIOR COURT, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are plaintiff's September 13, 2021, and October 15, 2021 motions to be taken off anti-psychotic medication, construed as motions for injunctive relief. (ECF Nos. 77, 83.) On November 18, 2021, the undersigned ordered defendants to file a supplemental opposition to these motions. (ECF No. 94.) On December 8, 2021, defendants filed a supplemental opposition. (ECF No. 100.)
For the reasons stated herein, the undersigned recommends that plaintiff's motions to be taken off anti-psychotic medication be denied.
Background
This action proceeds on plaintiff's amended complaint against defendants Bansal, Dr. Rauf and Maya. (ECF No. 13.) Defendant Bansal is employed at the California Medical Facility (“CMF”). Defendants Dr. Rauf and Maya are employed at Kern Valley State Prison (“KVSP”). (ECF No. 13.) Plaintiff alleges that these defendants violated the Eighth Amendment when they denied plaintiff's request to discontinue his prescription for the anti-psychotic medication Invega after plaintiff told defendants that he was not psychotic and that the medication caused harmful side effects, including chest pain, borderline diabetes, heart palpitations and gynecomastia (enlargement of breast tissue). (Id. at 3.)
Plaintiff is currently incarcerated at KVSP.
Discussion
As discussed in the November 18, 2021 order, in the pending motions plaintiff requests to be taken off all anti-psychotic drugs. However, in the amended complaint, plaintiff challenges his prescription for Invega rather than all anti-psychotic drugs. “[T]here must be a relationship between the injury claimed in the motion for injunctive relief and the conduct asserted in the underlying claim.” Pacific Radiation Oncology, LLC v. Queen's Medical Center, 810 F.3d 631, 636 (9th Cir. 2015).
The side effects plaintiff complains of in the amended complaint are allegedly caused by Invega. For this reason, the undersigned finds that plaintiff's pending requests to be taken off all anti-psychotic medication are not sufficiently related to his claim challenging the side effects of Invega. Accordingly, plaintiff's requests to be taken off all anti-psychotic medication, other than Invega, should be denied.
In the supplemental opposition, defendants state that plaintiff received his final dose of Invega, an anti-psychotic medication, on June 15, 2021, while he was housed at the California Health Care Facility (“CHCF”). (ECF No. 100-1 at 2.) Thereafter, plaintiff was prescribed Haldol, another anti-psychotic medication, and continues on that medication to this day. (Id.)
When a prisoner seeks injunctive relief concerning conditions at a prison, the prisoner's claims for prospective injunctive relief are moot when the prisoner is “no longer subject to the prison conditions or policies he challenges.” Alvarez v. Hill, 667 F.3d 1061, 1064 (9th Cir. 2012). Plaintiff's request to be taken off Invega is moot because plaintiff is no longer taking Invega.
An exception to mootness are “wrongs capable of repetition yet evading review.” Ctr. for Biological Diversity v. Lohn, 511 F.3d 960, 964 (9th Cir. 2007). A claim is “capable of repetition, yet evading review” when (1) the challenged action is of limited duration, too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again. Porter v. Jones, 319 F.3d 483, 489-90 (9th Cir. 2003).
Based on the current record, the undersigned finds that there is not sufficient evidence to find that there is a reasonable expectation that plaintiff will again be prescribed Invega. However, if plaintiff is again prescribed Invega, he may refile a motion to be taken off Invega.
Accordingly, for the reasons discussed above, plaintiffs requests to be taken off Invega should be denied as moot.
On December 6, 2021, plaintiff filed another motion to be taken of anti-psychotic medication. (ECF No. 99.) For the reasons discussed above, the undersigned recommends that this motion be denied.
Accordingly, IT IS HEREBY RECOMMENDED that plaintiffs motions to be taken off anti-psychotic medication (ECF Nos. 77, 83, 99) be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).