Opinion
No. 2:11-cv-2659 KJM KJN P
12-28-2012
TIMOTHY O'KEEFE, Plaintiff, v. JERRY BROWN, et al., Defendants.
ORDER
I. Introduction
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. On July 5, 2012, defendants Brown and Cate filed a motion to dismiss this action, alleging that plaintiff failed to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). On November 2, 2012, plaintiff filed an opposition; on September 7, 2012, defendants Brown and Cate filed a reply. On October 23, 2012, defendant Higgins filed a motion to join in the motion to dismiss; on November 2, 2012, plaintiff filed an opposition to defendant Higgins' motion. As set forth more fully below, defendants' motions to dismiss are granted, but plaintiff is granted leave to file a third amended complaint.
II. Plaintiff's Allegations
In his original complaint, filed October 5, 2011, plaintiff alleged that he was not receiving adequate and appropriate psychiatric treatment in a safe and therapeutic environment for his axis 1 diagnosis of exhibitionism, voyeurism, paraphilia, and other sexual problems. (Dkt. No. 1 at 1.) Plaintiff stated that he was about to be transferred to R.J. Donovan in San Diego, which has no adequate psychiatric treatment for plaintiff. (Dkt. No. 1 at 3.)
In his amended complaint, filed November 7, 2011, plaintiff alleged that he was not receiving adequate or appropriate psychiatric treatment in a safe and therapeutic environment for his mental health diagnoses of exhibitionism, voyeurism, and paraphilia. (Dkt. No. 5 at 2.) Plaintiff alleged that defendants were deliberately indifferent to plaintiff's serious medical needs.
In his second amended complaint, filed January 27, 2012, plaintiff claims his "issue is with the entire prison system in California." (Dkt. No. 21 at 1.) Plaintiff alleges that his Eighth and Fourteenth Amendment rights are being violated because plaintiff "is not receiving adequate and appropriate psychiatric care for his mental health diagnosis in a safe and therapeutic environment." (Id. at 4.) Plaintiff claims he is suffering "much mental and physical pain and anguish" and that he "has chronic suicidal thinking and feels hopeless and helpless." (Id.) Plaintiff recounts his long history of mental disorders, as well as the legal consequences for his actions resulting from his "deep-rooted psychosexual problems," including exhibitionism. Plaintiff provided copies of 2001 letters from District Attorney Kerry Wells and defense attorney William Apgar who both recommended that plaintiff receive sexual offender treatment at Atascadero or CMC East, California Men's Colony. (Dkt. No. 21 at 15, 17.) Plaintiff provided a copy of the 2001 report of licensed psychologist Kris Mohandie, Ph.D., who recommended, inter alia, that plaintiff receive adequate treatment which addresses plaintiff's affective disorder (depression), as well as his sexual offense related disorders; intensive psychological treatment to address his longstanding, recurrent, severe depression and serious suicidal ideation, including a psychiatric medication evaluation; and mandatory involvement in psychological treatment for his voyeurism and exhibitionism. (Dkt. No. 21 at 42.)
Plaintiff claims he has raised this issue of inadequate psychiatric treatment for his mental health diagnoses through inmate appeals, as well as through correspondence with various state officials, including the named defendants. Plaintiff alleges that in 2005, the Board of Parole Hearings recommended that plaintiff get psychiatric treatment for his criminal sexual proclivities. (Dkt. No. 21 at 8, 72.) Plaintiff provided a copy of an October 5, 2011 letter from Jay Atkinson, PRA Coordinator, Offender Information Services Branch, Office of Research, California Department of Corrections and Rehabilitation ("CDCR"), who stated that "[a]t this time there is no treatment for sex offenders offered in state prison." (Dkt. No. 21 at 45.)
Plaintiff seeks, inter alia, a court order requiring defendants to provide adequate and appropriate mental health care in a safe and therapeutic environment that is consistent with the plaintiff's mental health diagnosis of exhibitionism, voyeurism, and paraphilia. (Dkt. No. 21 at 12.) In the alternative, if such treatment is not available through the CDCR, plaintiff seeks an order requiring defendants to transfer plaintiff to the Coalinga State Mental Hospital for treatment. (Dkt. No. 21 at 13.)
III. The Parties' Arguments
A. Motion to Dismiss
Defendants move to dismiss plaintiff's claims on multiple grounds. First, defendants contend plaintiff fails to state a cognizable due process claim because the Ninth Circuit has held that an inmate serving a criminal sentence does not possess a constitutionally protected liberty interest in sex offender treatment. Balla v. Idaho State Bd. of Corrections, 869 F.2d 461 (9th Cir. 1989).
Second, defendants contend that plaintiff fails to state a cognizable Eighth Amendment claim based on plaintiff's claim that he is denied sex offender treatment because a sex offender may or may not suffer from a mental disorder. In addition, defendants contend that sex offender treatment is a rehabilitative treatment used to ready inmates for return to society, and at least one court has held that denial of sex offender treatment to sex offenders does not qualify as deliberate indifference, citing Bell v. Holder, 2011 WL 7472930, at *8 (M.D. Ala. Nov. 14, 2011) (prisoners do not have a general constitutional right to participate in a specific rehabilitation program, and the failure to provide rehabilitation does not constitute cruel and unusual punishment). In connection with plaintiff's claim that defendants failed to provide him adequate treatment for his diagnoses of exhibitionism, voyeurism, and paraphilia, defendants contend that plaintiff failed to allege sufficient facts to support this claim. Specifically, plaintiff failed to allege specific facts as to what particular treatment, medication, or evaluation was allegedly denied, nor does he identify the defendant who allegedly denied such. (Dkt. No. 46-1 at 8.) Defendants argue that plaintiff's claim that he received no mental health treatment is contradicted by an exhibit in which plaintiff admits he received some psychiatric treatment (dkt. no. 46-1 at 9), and that another exhibit reflects plaintiff was recently treated at Salinas Valley Psychiatric Program -- Intermediate Care Facility. (Id.)
Third, defendants argue that plaintiff's claims for injunctive relief are barred in light of Coleman v. Schwarzenegger, No. 2:90-cv-0520 LKK JFM (E.D. Cal.), a class action suit concerning mental health care in California state prisons. Defendants contend that because exhibitionism is a subject matter under the jurisdiction of Coleman, plaintiff's claim for equitable relief should be dismissed for failure to state a claim.
Finally, defendants contend that plaintiff's settlement of claims in O'Keefe v. Gomez, et al., 2:92-cv-0104 JFM, bar litigation of those claims in this action according to the doctrine of res judicata. Defendants point to the language of the Stipulated Settlement and Release, which states the parties' intent to settle and waive all future claims on the issue:
Plaintiff does for himself, his heirs, executors, administrators, attorneys, representatives, agents and assigns, release and expressly waive the right to pursue any and all claims, demands, liabilities, actions, suits, causes of action, obligations, controversies, costs, expenses, damages, losses and judgments of every kind or character in law, equity or otherwise, including attorney's fees and costs, against the defendants, named and unnamed, and the State of(Dkt. No. 47-3 at 4.)
California, its agencies and departments, officers, employees, agents or assigns which plaintiff has based upon or by reason of, in whole or in part, any act, omission to act, transaction, practice, conduct, matter, cause or thing of any kind or charge directly or indirectly arising out of or in anyway connected with the alleged events which are the subject of the action.
B. Plaintiff's Opposition
In opposition, plaintiff clarifies that he is not seeking "sex offender" treatment, but rather argues that he is not receiving adequate and appropriate psychiatric treatment in a safe and therapeutic environment for his Axis 1 diagnosis of exhibitionism, voyeurism, and paraphilia, because no such treatment exists. (Dkt. No. 58-1 at 1, 8.) Plaintiff asserts that defendants are violating his Eighth Amendment rights because the lack of treatment constitutes deliberate indifference to plaintiff's serious medical needs. Plaintiff concedes that he has received some psychiatric treatment, but contends it is not "close to the psychiatric treatment that Kris Monhandle recommended," or treatment that "effectively addresses plaintiff's mental health diagnosis." (Dkt. No. 58-1 at 9.) Plaintiff relies on his Exhibit A for the proposition that there is no treatment for exhibitionism, voyeurism and paraphilia in the CDCR. (Dkt. No. 58-1 at 13.) Exhibit A is PRA Coordinator Atkinson's October 5, 2011 letter stating that "there is no treatment for sex offenders offered in state prisons." (Dkt. No. 58-1 at 16.)
Plaintiff claims that he sued the named defendants because "this issue encompasses all the prisons within the [CDCR]." (Dkt. No. 58-1 at 7.) Plaintiff alleges that defendant Cate is responsible for all the prisons within the prison system, and that defendant Brown, as Governor, is responsible for what defendant Cate does. (Id.)
Plaintiff contends defendants violated his due process rights because he has a legitimate right to treatment for his criminal sexual proclivities, relying on Beebe v. Heil, 333 F. Supp.2d 1011, 1015 (D. Col. 2004). Plaintiff also contends his due process rights are violated by the failure to provide such treatment, because the Board of Parole Hearings recommended that plaintiff receive psychiatric treatment for his exhibitionism, voyeurism, and paraphilia, and plaintiff will be unable to obtain parole without this treatment.
Plaintiff claims he suffers from a serious medical need by virtue of his diagnosis of exhibitionism, voyeurism, and paraphilia, and the failure to provide mental health treatment constitutes deliberate indifference in violation of the Eighth Amendment.
Plaintiff argues that his claim for equitable relief is not barred by Coleman, and that Coleman counsel advised plaintiff that under Coleman, the CDCR is not mandated to treat prisoners with sexual disorders. (Dkt. No. 58-1 at 2.) Plaintiff concedes "that there are provisions under Coleman for prisoners who have a diagnosis of exhibitionism," but plaintiff contends that these provisions do not cover plaintiff's needs. (Dkt. No. 58-1 at 10.)
In connection with defendants' res judicata arguments concerning the prior settlement, plaintiff contends that while a few facts are the same, the instant case stems from a different set of facts, and that because plaintiff did not name the Governor as a defendant in the case settled in 1994, there is no identity or privity of parties.
C. Defendants' Reply
In reply, defendants note that plaintiff failed to allege facts demonstrating that a violation of federal law occurred, or that a government entity was the moving force behind the alleged violation. Defendants contend that plaintiff failed to allege sufficient facts demonstrating that plaintiff was denied a particular treatment, therapy, evaluation or level of care within the mental health system, or to allege facts demonstrating a culpable state of mind on the part of defendants, rather than a mere difference of opinion concerning mental health treatment. To the extent that plaintiff seeks to sue defendants in their official capacities, defendants argue that plaintiff failed to identify a policy that was the moving force behind the alleged violation. In the second amended complaint, plaintiff alleged that there was a lack of sex offender treatment, which plaintiff now states he is not challenging. Although plaintiff alleged he was personally not receiving adequate treatment for exhibitionism, voyeurism, and paraphilia, defendants argue that plaintiff did not allege that the CDCR does not offer any treatment for exhibitionism, voyeurism, and paraphilia. (Dkt. No. 61 at 4.) Defendants also contend that plaintiff admits that some treatment for exhibitionism is available through the security housing unit where there is psychiatric treatment for exhibitionism, and that plaintiff is part of the mental health delivery system, at the Enhanced Outpatient Program level of care (dkt. no. 58-1 at 4), and that plaintiff has an assigned psychologist (id. at 6). (Dkt. No. 61 at 4.)
Defendants argue that plaintiff's factual allegations in the second amended complaint are unclear as to whether plaintiff alleges a CDCR policy caused his alleged inadequate treatment, or whether the alleged inadequate treatment was caused by CDCR employees who are not following CDCR policy. (Dkt. No. 61 at 5.) Defendants further contend that it is unclear whether plaintiff is challenging a particular CDCR or State of California policy.
In addition, defendants contend that plaintiff failed to allege sufficient facts to demonstrate that defendants personally violated plaintiff's Eighth Amendment rights, arguing that there is no link or connection alleged between each defendant and the lack of treatment, and that supervisory liability under a theory of respondeat superior is insufficient.
With regard to plaintiff's due process claim, defendants argue that plaintiff's reliance on Beebe is unavailing because Beebe was sentenced under a Colorado sentencing scheme for sex offenders that gave him an indeterminate sentence and required sex offender treatment, but plaintiff is serving a sentence for assault with a deadly weapon, and California does not have a similar sentencing scheme for sex offenders. In addition, the Ninth Circuit has found that an inmate serving a criminal sentence does not possess a constitutionally protected liberty interest in sex offender treatment. Balla, 869 F.2d at 468-70.
Defendants reiterate their argument that plaintiff's injunctive relief claim is part of the Coleman class litigation. Defendants argue that plaintiff admits he is diagnosed with exhibitionism which defendants contend makes plaintiff a part of the Coleman class. Coleman v. Schwarzenegger, 2009 WL 2430820 at *15 (E.D. Cal. Aug. 4, 2009). Defendants contend that to the extent plaintiff requests that the CDCR change its policies regarding the treatment of inmates diagnosed with exhibitionism, his request falls squarely within the area covered by the Coleman class action.
In connection with the settlement of plaintiff's prior lawsuit, defendants dispute plaintiff's characterization of his claims as stemming from "a whole different set of facts." (Dkt. No. 61 at 7.) Defendants contend that plaintiff alleges no specific instance since 1994 where plaintiff was denied adequate mental health care. Rather, plaintiff alleges vague allegations that the CDCR is not providing plaintiff with adequate mental health treatment. Defendants argue that in his prior case, plaintiff argued the same vague allegations, and thus plaintiff should not be permitted to re-litigate those claims in this action.
IV. Legal Standard for Motion to Dismiss
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, 129 S. Ct. 1937, 1949 (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, 129 S. Ct. at 1949. 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 Feiner & 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 & Spalding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
V. Analysis
1. Due Process Claims
Defendants are correct that the Ninth Circuit has found that prisoners have no liberty interest in sex offender treatment; thus, plaintiff cannot state a cognizable due process claim based on the denial of sex offender treatment. Balla, 869 F.2d 470; Maimon v. Rea, 127 Fed. Appx. 295 (9th Cir. 2005) (prisoner had no due process liberty interest in sex offender treatment). These Ninth Circuit rulings are binding on this court; plaintiff's reliance on Beebe is unavailing. Thus, plaintiff should not renew this due process claim in any third amended complaint.
Plaintiff now claims "he is not seeking 'sex offender' treatment, but rather is seeking adequate and appropriate psychiatric treatment for his Axis 1 diagnoses of exhibitionism, voyeurism and paraphilia." (Dkt. No. 58-1 at 7-8.) However, it is not clear from Ninth Circuit precedent whether not requiring "sex offender" treatment also encompasses not requiring "psychiatric treatment" for various Axis I diagnoses which may include psychiatric conditions potentially contributing to a person being a sex offender. While the undersigned does not address that distinction herein, regardless plaintiff should refrain from using the terms "sex offender treatment" in any third amended complaint.
2. Coleman
Coleman v. Schwarzenegger, No. 2:90-cv-0520 LKK JFM (E.D. Cal.), is a class action suit concerning mental health care in California state prisons. However, this court does not read the application of Coleman as broadly as defendants. See Jaspar v. Khoury, 2011 WL 2457904, at *3-5 (E.D. Cal. June 16, 2011) (appended). Rather, this court finds that Coleman more narrowly precludes only those equitable claims that seek broad, systemic changes targeted by the Coleman class action.
In the second amended complaint, plaintiff states that "this issue is with the entire prison system in California." (Dkt. No. 21 at 1.) In his opposition, plaintiff also argues that he named the defendants because this issue encompasses all the prisons within the CDCR. (Dkt. No. 58-1 at 7.) Plaintiff also argues that this issue "affects some 24,000 other prisoners and the general public safety." (Dkt. No. 67 at 3.) Thus, to the extent plaintiff is alleging systemic challenges to the provision of mental health care in prison, such claims are barred by Coleman.
Plaintiff is cautioned that he cannot bring an action on behalf of the other 24,000 incarcerated sex offenders. Plaintiff is a non-lawyer proceeding without counsel. It is well established that a layperson cannot ordinarily represent the interests of a class. See McShane v. United States, 366 F.2d 286 (9th Cir. 1966). This rule becomes almost absolute when, as here, the putative class representative is incarcerated and proceeding pro se. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975). In direct terms, plaintiff cannot "fairly and adequately protect the interests of the class," as required by Rule 23(a)(4) of the Federal Rules of Civil Procedure. See Martin v. Middendorf, 420 F. Supp. 779 (D. D.C. 1976). Thus, in any third amended complaint, plaintiff must pursue his own individual claims for relief.
It also appears plaintiff now challenges the provision of mental health care for exhibitionism, voyeurism, and paraphilia. Defendants argue that because exhibitionism is part of the Coleman class action, plaintiff is required to pursue this claim through the Coleman class. Exhibitionism appears to be part of the Coleman class action. Coleman v. Schwarzenegger, 2009 WL 2430820 at *15 (E.D. Cal. Aug. 4, 2009). Thus, to the extent plaintiff requests that the CDCR change its policies regarding the treatment of inmates diagnosed with exhibitionism, such a request falls squarely within the Coleman class action, and plaintiff may not pursue an individual claim on that basis. However, as set forth above, to the extent plaintiff intends to amend his complaint to challenge the provision of mental health care for himself only, even in connection with his exhibitionism, such a claim is not barred by Coleman.
3. Eighth Amendment Claims
The Civil Rights Act under which this action was filed provides as follows:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978) ("Congress did not intend § 1983 liability to attach where . . . causation [is] absent."); Rizzo v. Goode, 423 U.S. 362 (1976) (no affirmative link between the incidents of police misconduct and the adoption of any plan or policy demonstrating their authorization or approval of such misconduct). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979) (no liability where there is no evidence of personal participation). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal participation is insufficient).
Plaintiff's claim involves his mental health care and therefore falls within the purview of the Eighth Amendment. In order to state a claim for relief under the Eighth Amendment for inadequate prison mental health or medical care, plaintiff must allege "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976).) The two prong test for deliberate indifference requires the plaintiff to show (1) "'a serious medical need' by demonstrating that 'failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992).) Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d at 1060.) In order to state a claim for violation of the Eighth Amendment, a plaintiff must allege sufficient facts to support a claim that the named defendants "[knew] of and disregard[ed] an excessive risk to [plaintiff's] health. . . ." Farmer v. Brennan, 511 U.S. 825, 837 (1994).
In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner's civil rights have been abridged, "the indifference to his medical needs must be substantial. Mere 'indifference,' 'negligence,' or 'medical malpractice' will not support this cause of action." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06.) A complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). A difference of opinion between medical professionals concerning the appropriate course of treatment generally does not amount to deliberate indifference to serious medical needs. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Also, "a difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a[§ ]1983 claim." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). To establish that such a difference of opinion amounted to deliberate indifference, the prisoner "must show that the course of treatment the doctors chose was medically unacceptable under the circumstances" and "that they chose this course in conscious disregard of an excessive risk to [the prisoner's] health." See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); see also Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012) (doctor's awareness of need for treatment followed by his unnecessary delay in implementing the prescribed treatment sufficient to plead deliberate indifference); see also Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012) (decision of non-treating, non-specialist physicians to repeatedly deny recommended surgical treatment may be medically unacceptable under all the circumstances.)
In his oppositions, plaintiff concedes he named defendants because his claim encompasses all of the prisons within the CDCR; he states that defendant Cate is responsible for all the prisons, and defendant Brown is responsible for defendant Cate's actions. (Dkt. No. 58-1 at 7.) Arguably, plaintiff named defendant Higgins due to her role as chief psychiatrist. Because plaintiff's systemic claims concerning mental health care in California prisons must be brought through the Coleman class action, defendants' motion to dismiss is granted. However, plaintiff is granted leave to file a third amended complaint to name as defendants those persons responsible for the alleged denial of plaintiff's personal mental health care.
In addition, in any third amended complaint, plaintiff must allege facts demonstrating each defendant's personal involvement, as well as facts demonstrating that each defendant was deliberately indifferent to plaintiff's serious mental health needs. The exhibits provided by plaintiff demonstrate that he is in the EOP level of mental health care, and has received psychiatric treatment as recently as 2011. Plaintiff provided a copy of a September 15, 2011 memorandum from a Correctional Counselor at Salinas Valley State Prison who stated that plaintiff was
endorsed to Salinas Valley State Prison for . . . psychiatric treatment . . . . [Plaintiff was] originally transferred to RJD level IV EOP SNY as a level III override due to the administrative determinant for your psychological condition as an emergency endorsement from the Central Training Facility (CTF) base[d] on your need for EOP level of care at the time.(Dkt. No. 21 at 51.) Moreover, despite plaintiff's reliance on Mr. Atkinson's statement, plaintiff provided a copy of a memo from Chief Deputy Warden Solis at Salinas Valley State Prison, dated September 2, 2011, which states that the CDCR does offer programs for sex offenders, and that plaintiff should "put in a request to see a mental health clinician." (Dkt. No. 21 at 52.) Plaintiff concedes that he has received some psychiatric treatment, but contends it is not "close to the psychiatric treatment that Kris Monhandle recommended," or treatment that "effectively addresses plaintiff's mental health diagnosis." (Dkt. No. 58-1 at 9.) In any third amended complaint, plaintiff must make clear the specific treatment, or lack of treatment, he alleges demonstrates deliberate indifference to plaintiff's serious mental health needs. For example, if plaintiff claims that his transfer to R.J. Donovan deprived him of the psychiatric treatment he was receiving at Salinas Valley State Prison, and such transfer was deliberately indifferent to his serious mental health needs, plaintiff should so claim in any third amended complaint.
Plaintiff also cites recommendations by nonmedical persons, for example, the district attorney and plaintiff's defense attorney, as to treatment plaintiff should receive. Plaintiff is advised, however, that only medical professionals' recommendations are relevant to plaintiff's mental health care.
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Just as plaintiff alleged specific facts concerning his mental health care in his prior lawsuit, Case No. 02-cv-0104, plaintiff must allege specific facts demonstrating how each named defendants are deliberately indifferent to plaintiff's serious mental health needs.
For all of the above reasons, plaintiff's second amended complaint is dismissed with leave to amend.
4. Plaintiff's Prior Settlement
Defendants' request for judicial notice of documents filed in O'Keefe v. Gomez, et al., 2:92-cv-0104 (E.D. Cal.), is granted. (Dkt. No. 47.)
The doctrine of res judicata protects "litigants from the burden of relitigating an identical issue" and promotes "judicial economy by preventing needless litigation." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). The court bars a claim where there is an identity of claims, a final judgment on the merits, and privity between parties. See Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005). An identity of claims exists if the two actions arise out of the same transactional nucleus of facts. Burlington N. Santa Fe R.R. v. Assiniboine & Sioux Tribes, 323 F.3d 767, 770 (9th Cir. 2003). Res judicata "bar [s] all grounds for recovery which could have been asserted, whether they were or not, in a prior suit between the same parties . . . on the same cause of action." Constantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir. 1982) (quoting Ross v. IBEW, 634 F.2d 453, 457 (9th Cir. 1980)).
Res judicata is generally jurisdictional; therefore the motion to dismiss is properly made under Federal Rule of Civil Procedure 12(b)(1). See Lande v. Billings Hospitality, Inc., 2008 WL 4180002, *1 (D. Mont. 2008).
In O'Keefe v. Gomez, 2:92-cv-0104, plaintiff sued the Director of the CDCR, the Assistant Deputy Director for Medical Services, the Acting Warden of the California Mens Colony - East Prison ("CMC-East"), the Chief Medical Officer of CMC-East, the Chief Psychiatrist of CMC-East, the Classification and Parole Representative of CMC-East, two staff psychologists at CMC-East, a correctional lieutenant and a correctional officer at the CDCR, each in their individual and official capacities. (Dkt. No. 47-1 at 2.) Plaintiff recounted his criminal and history of abnormal sexual behavior as he did in the instant action. However, in addition, plaintiff alleged specific factual allegations concerning his mental health treatment in various prisons and Atascadero State Hospital from 1988 to 1992. (Dkt. No. 47-1 at 7-21.)
In Case No. 2:92-cv-0104, plaintiff pursued the following legal claims: (1) the alleged beatings plaintiff suffered violated his Eighth and Fourteenth Amendment rights; (2) that plaintiff's transfer from CMC-East back to New Folsom allegedly denied plaintiff psychotherapy and psychiatric care in violation of the Eighth and Fourteenth Amendments; (3) defendants allegedly ignored plaintiff's past psychiatric illness and treatments, and the expert medical opinions of prior doctors who recommended treatment in violation of the Eighth Amendment; and (4) that defendants allegedly punished plaintiff for making false allegations against staff, denying plaintiff's right to free speech under the First Amendment. (Dkt. No. 47-1 at 21.) Plaintiff sought injunctive relief requiring defendants to (a) transfer plaintiff back to CMC-East; (b) provide plaintiff with adequate and appropriate psychiatric treatment, including psychotherapy at CMC-East; (c) retain plaintiff at CMC-East until plaintiff is released from prison; (d) give plaintiff the drug Depo-Provera as part of plaintiff's psychiatric treatment; (e) provide plaintiff with a single cell; (f) prohibit defendants from harassing or retaliating against plaintiff for bringing the legal action; (g) provide psychotherapy at New Folsom Prison until plaintiff is transferred back to CMC-East; and (h) bring in a non-CDCR psychologist experienced in working with sex offenders to evaluate plaintiff's need for treatment. (Dkt. No. 47-1 at 22.) Plaintiff also sought compensatory and punitive damages. (Id.)
On June 17, 1994, plaintiff's civil action 2:92-cv-0104 JFM, was settled; plaintiff was to be transferred to the California Medical Facility for psychiatric evaluation. (Dkt. No. 88.) Plaintiff signed the waiver set forth above. (Dkt. No. 47-3 at 4.)
Plaintiff paroled in 1995, and again in 1998, but was reincarcerated in 2000 based on a new conviction.
In the second amended complaint, plaintiff provided no specific factual allegations as to his current psychiatric treatment at R.J. Donovan Correctional Facility where plaintiff is presently housed, and sought, inter alia, mental health care for his exhibitionism, voyeurism, and paraphilia. Although there may be some overlap with plaintiff's systemic claims as to his mental health care, which are barred under Coleman, the prior case contained detailed allegations concerning plaintiff's treatment at CMC-East which are not reiterated in the instant second amended complaint or plaintiff's oppositions. Also, it does not appear, at least from the complaint, that plaintiff specifically sought mental health care for his exhibitionism, voyeurism, and paraphilia in Case No. 92-cv-0104. Thus, defendants' motion to dismiss plaintiff's claims under the doctrine of res judicata is denied without prejudice.
5. Leave to Amend
As noted above, plaintiff's second amended complaint is dismissed with leave to amend. If plaintiff chooses to file a third amended complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the third amended complaint must allege in specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
A district court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp., 550 U.S. at 555). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp., 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. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.Ashcroft, 129 S. Ct. at 1949 (citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id. at 1950.
In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's third amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This requirement is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a third amended complaint, the original pleading no longer serves any function in the case. Therefore, in a third amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.
VI. Conclusion
Accordingly, IT IS HEREBY ORDERED that:
1. Defendants' request for judicial notice (dkt. no. 47) is granted;
2. Defendants' July 5, 2012 motion to dismiss (dkt. no. 46) is granted;
3. Defendant Higgins' October 23, 2012 motion to dismiss (dkt. no. 66) is granted;
4. Plaintiff's second amended complaint (dkt. no. 21) is dismissed;
5. Within thirty days from the date of this order, plaintiff may complete the attached Notice of Amendment and submit the following documents to the court:
a. The completed Notice of Amendment; and
b. An original and one copy of the Third Amended Complaint. Plaintiff's third amended complaint shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the third amended complaint must bear the docket number assigned this case and must be labeled "Third Amended Complaint"; failure to file a third amended complaint in accordance with this order will result in the dismissal of this action.
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KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
TIMOTHY O'KEEFE, Plaintiff,
vs. JERRY BROWN, et al., Defendants.
No. 2:11-cv-2659 KJM KJN P
NOTICE OF AMENDMENT
Plaintiff hereby submits the following document in compliance with the court's order filed ___:
____ Third Amended Complaint
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Plaintiff