Opinion
A02-214 CV (JKS), (Docket No. 47).
November 21, 2005
RECOMMENDATION REGARDING MOTION TO DISMISS
The defendants in the above entitled action seek dismissal of the complaint against them on the grounds that the plaintiff, Mr. Charlie J. Davis Jr., failed to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997(e), and on the grounds that Mr. Davis has failed to allege a physical injury within the meaning of 42 U.S.C. § 1997e(e). Docket No. 47. Davis filed and opposition to said motion at docket No. 53, and the defendants replied at docket No. 59. Oral argument has not been requested and is not deemed necessary to the disposition of the motion. For the reasons that follow the defendants' motion to dismiss should be denied.
BACKGROUND
Davis was incarcerated at the Palmer Correctional Center in 2002. Earlier that year he had suffered a serious heart attack. In 1993 he had heart bypass surgery. Prior to Davis' incarceration, his treating physician prescribed a medication known as Coumadin Crystalline. According to his doctor's orders, Davis medication levels were to be monitored and checked every two weeks during his incarceration. Davis alleges that this did not occur. He also alleges that on one or more occasions he was not given his medicine.Davis alleges that as a result of not having his medication levels properly controlled, he suffered from blood pressure spikes, dizzy spells, nosebleeds, and pain. Additionally, he alleges that he suffered from anxiety, sleeplessness, and other emotional distress because of his improper medical care. Davis alleges that between June 5, 2002, and his transfer from Palmer Correctional Facility he continually complained that his medical condition was not being properly monitored in accordance with doctor's orders.
On or about June 13, 2002, Davis filed a formal prisoner's grievance. He filed a formal prison grievance to that effect, which was assigned to investigator W. Roger Hale. On or about June 27, 2002, the investigation was reviewed by defendant Zelmer Hyden who was the superintendent in charge of the Palmer Correctional Center. That review resulted in Hyden concluding that Hale's investigation was inadequate and did not address the grievance. On or about June 27, 2002, Hyden denied Davis' grievance. On or about the same date, Davis filed an appeal of the denial of his grievance. On or about September 5, 2002, defendant Mel Henry (then medical director of the Palmer Correctional Facility and responsible for supervising inmate medical care) denied the grievance appeal.
DISCUSSION
In the instant action Davis makes claims against all defendants for: Violation of his civil rights under the due process clause and the Fourteenth Amendment to the United States Constitution (COUNT I); and, For inadequate medical care through deliberate indifference to his serious medical needs resulting in increased pain, potentially life threatening spikes in blood pressure, dizzy spells, anxiety, and other psychological trauma (COUNT II). The amended complaint states that the court has jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3). Although the amended complaint, filed by Davis' counsel does not state that his claims are brought pursuant to 42 U.S.C. § 1983, the original pro se complaint did so indicate and it is obvious that they are so brought. Moreover, and while the court is careful not to de facto rewrite plaintiff's complaint, the court fairly induces that the basis of COUNT I under the Fourteenth Amendment is a violation of the Eighth Amendment's prohibition against cruel and unusual punishment through the deliberate indifference to his serious medical needs while incarcerated. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). The analysis of such claims is properly made under the Eighth Amendment as incorporated under the Fourteenth Amendment, not the Due Process Clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535-537 (1979). Even if both a Due Process Clause analysis would be analytically correct, it should not be employed where it would be redundant to an Eighth Amendment analysis. Valdez v. Farmon, 766 F.Supp. 1529, 1536 (E.D.Cal. 1991). As set forth in the complaint COUNT II, alleging inadequate medical care, appears to be an extension of Count I, except that it is presumably the basis for declaratory and injunctive relief. It is arguable that COUNT II is therefore redundant. It is also possible that COUNT II is in fact a claim meant to be brought under the Eighth Amendment, in which case it is COUNT I that is brought in error — or redundant — and should be dismissed. Regardless, the technical deficiencies in the complaint are not presently before the court and can be left to another day.
Before proceeding with the merits of the motion, it is necessary to point out that both the defendants and Davis have respectively submitted erroneous legal standards for determination of the motion. The defendants rely on Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) provides a mechanism for dismissal of claims upon which relief cannot be granted. The bases of the defendants' motion are that he failed to exhaust his administrative remedies and that he has failed to make the requisite showing of a physical injury. These grounds for dismissal do not fall within the ambit of Rule 12(b)(6); rather the first is a procedural bar and the second a limitation on recovery, provided for by statute at 42 U.S.C. §§ 1997(e)(a) and 1997(e)(e) respectively. For his part, Davis's defense relies on the summary judgment standard of Fed.R.Civ.P. 56(c). Yet, the defendants did not file a motion for summary judgment. Again, the standard of review is provided for statutorily.
The court will address the grounds of the defendants' motion to dismiss in order.
I
DID DAVIS EXHAUST HIS ADMINISTRATIVE REMEDIES AS REQUIRED BY 42 U.S.C. § 1997(e)(a)?
The defendants argue that Davis failed to exhaust his administrative remedies as required under 42 U.S.C. § 1997(e)(a). Without summing-up their position, the defendants begin with an oblique argument to the effect that a grievance does not exhaust administrative remedies for claims that have not yet occurred or for all future complaints of the same general type. See Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004). Apparently, this argument is aimed at allegations of a failure to provide Davis with adequate medical care after the filing of his grievance. This shallow argument is not well taken. Davis' grievance concerned an ongoing situation involving a specific medical condition, which serves as the predicate to his present claims. In contrast, the Eighth Amendment claim in Ross was, as defendants note, based on a "laundry list" of problems. The instant claims are not based on such segmented allegations; but rather, on a situation that constituted an alleged continuum of failure to provide adequate medical care as represented by Davis' specific medical condition. Ross is inapposite.
The defendants then segue into their primary argument that Davis' grievance did not name either Hyden or Henry and even if it were deemed to have name one of them the complaint must be dismissed. See Nichols v. Logan, 355 F.Supp.2d 1155 (S.D. California 2005) (inmate failed to exhaust administrative remedies by not naming in his grievance all correctional officials who were named as defendants in civil rights action). Indeed, the grievance named neither Hyden nor Henry. Davis counters that § 1997(e)(a)'s exhaustion requirement is not intended to use technicalities to limit the relief that can be sought in a subsequent lawsuit. This he urges is what the defendants are seeking to do. In support of his position Davis relies on well settled law to the effect that as long as a plaintiff's grievances were sufficient to put the prison on notice of the potential claims — which fulfills the basic purpose of the exhaustion requirement — there is no reason to require fully developed legal and factual claims at the administrative level. Irvin v. Zamora, 161 F.Supp. 2d 1125, 1134-1135 (S.D. Cal. 2001). The defendants attempt to distinguish Irvin using two subsequent cases, also decided by the Southern District of California. In Ornelas v. Giurbino, 358 F.Supp.2d 995 (S.D. Ca. 2005) and Nichols v. Logan, 355 F.Supp.2d 1155 (S.D. Cal. 2004) our sister court held that where a plaintiff had named some, but not all defendants, in a § 1983 action in his prison grievance, the entire complaint must be dismissed. The rationale being that allowing the action to proceed would result in inefficient and piecemeal litigation since there would be multiple cases and witnesses — both percipient and expert — would have to testify at multiple trials. This is a sound statement of the law, but the defendants distinguishing Irvin from Ornelas and Nichols is of no moment.
Lost on the parties is the extensive discussion by the court in Irvin of the case of Brown v. Sikes, 212 F.3d 1205 (11th Cir. 2000) . See Irvin, 161 F.Supp.2d at 1131-1132. Brown is on all fours with the instant case. There, the Eleventh Circuit teaches that where a prisoner fails to name state corrections department officials in his administrative grievances alleging denial of necessary medical treatment, his complaint will not be dismissed provided "that the prisoner provide during the grievance process all of the information concerning his claims that he has or reasonably could obtain. Brown, 212 F.3d at 1209-1210. This is precisely what Davis did in his grievance. ( See Defendant's motion to dismiss Docket No. 47 page 2 quoting "Exhibit A, Prisoner Grievance"). Moreover, a prisoner's grievance need not require information he cannot reasonably obtain, and in the absence of an indication that he had information beyond that which he included in his grievance his complaint should not be dismissed. Id. As in Brown, there is nothing to indicate that Davis had or could reasonably obtain information that should have been included in his grievance. Notably, the defendants' reply does not take issue with Davis' submission that the grievance procedure for health care does not specify the need to pursue a "Level Three" appeal; but rather an appeal to the Health Care Officer is specified, which is exactly what Davis did. In short, he followed the grievance procedure.
The defendants submit that the doctrine of respondeat superior is not applicable in § 1983 actions. It strikes the court that this is not a question of respondeat superior, but rather one of responsibility of those charged with supervising certain aspects of the correctional facility functions which would constitute "personal involvement". See id., and Duncan v. Duckworth, 644. F.2d. 653, 655-656 (7th Cir. 1981). It seems the defendants may have misused a term of art. Assuming arguendo, that this is a question of vicarious liability, the court would likely look to state law to determine the applicability of the doctrine of respondeat superior. See Carroll v. Federal Express Corp., 113 F.3d 163 (9th Cir. 1997); Meredith v. State of Ariz., 523 F.2d 481 (9th Cir. 1975; Hesselgesser v. Reilly, 440 F.2d 901 (9th Cir. 1971). Likewise, Davis' claims for declaratory and injunctive relief raise questions of standing — given his now non-incarcerated status — as well as questions of the availability/appropriateness of the sort of equitable relief Davis seeks. See Ippolito v. Meisel, 958 F.Supp. 155 (S.D.N.Y. 1997); Mercer v. Brunt, 272 F.Supp.2d 181 (D.Conn. 2002). Regardless, such issues go to the merits of the case, and are matters that may be considered on another day. Suffice it to say that dismissal of Davis' complaint on the grounds that he failed to exhaust his administrative remedies is not appropriate in this case.
II
DID DAVIS MAKE THE REQUISITE SHOWING OF A PHYSICAL INJURY FOR RECOVERY OF A MENTAL OR EMOTIONAL INJURY AS REQUIRED BY 42 U.S.C. § 1997(e)(e)?
42 U.S.C. § 1997(e)(e) provides: "No civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." The defendants posit that even assuming Davis' allegations are true, he has not shown the requisite physical injury. To this end they contend Davis has failed to allege more than de minimis injury, of the sort they argue was rejected in the "almost identical" case of Todd v. Graves, 217 F.Supp.2d (S.D. Iowa 2002). There the court rejected a prisoner's claims that as result of stress caused by not being allowed to visit his hospitalized mother and attend her funeral he further suffered "physical injury" consisting of increased high blood pressure, aggravated hyper-tension, dizziness, insomnia, and loss of appetite. Todd 217 F.Supp.2d at 959-960. Additionally, Todd argued that the increased hyper-tension put him at greater risk for heart attack and stroke. Id. at 960.
In the instant case, Davis also claims to have suffered pain, anxiety, and other psychological trauma. It is not clear whether the "pain" Davis claims to have suffered was the result of the nosebleeds he mentions in the factual allegations of the his complaint, or if it includes other pain. As for the nosebleeds, the defendants' reply makes a strong showing that these were indeed de minimis and probably the result of nose-picking. As for "other pain", the claim/allegation is simply too vague to satisfy § 1997(e)(e). As for the claims of dizzy spells these too appear to have been de minimis. Furthermore, his claims of anxiety and "other psychological trauma" necessarily fail without at least an allegation of physical injury that is more than de minimis, although not necessarily significant. Oliver v. Keller, 289 F.3d 623, 630 (9th Cir. 2002). Indeed, as the defendants' suggest, Davis' failure to respond to the defendants' discussion of the Todd case is conspicuous by its absence. However, the impassioned response made by Davis on this issue is not lost on the court. It is very troubling that a person with such severe medical problems as Mr. Davis was not given more considered medical attention. A 70 year old man with an implanted defibrillator and seven prescription medications was different than an average prisoner in the regular prison population. Davis argues that under those circumstances his claims of physical injury were not de minimis, but life-threatening. The court agrees. But it is legal analysis, not passion, that sways the court. Unlike the prisoner in Todd, this was not the sort of situation that can be written off by saying: "Prison itself is a stressful environment." Todd, 217 F.Supp. at 960. True, as the court in Todd concluded: "If the symptoms complained of by Todd were enough to satisfy the physical injury requirement of 42 U.S.C. § 1997(e)(e), very few plaintiffs would be barred by seeking compensation on claims for emotional distress." But the facts of Todd are only superficially comparable to those of the instant case. The critical difference between the cases is that Todd alleged that denying him furlough caused and exacerbated his medical problems. In the case sub judice, there was an alleged willful deliberate indifference to serious medical needs. As the Supreme Court instructs in Estelle v. Gamble, 429 U.S. 97, 104-105 (1976):
. . . deliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain," Gregg v. Georgia, supra, at 173 (joint opinion), proscribed by the Eighth Amendment. 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. Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under § 1983.(emphasis added) (footnotes omitted). Although the Prison Litigation Reform Act was passed subsequent to the Estelle decision, nothing in § 1997(e)(e) subtracts from the conclusion that deliberate indifference to a prisoner's serious illness constitutes an injury significant enough to state a claim under § 1983. At the very least, Davis should have the opportunity to show that his obviously serious illness was treated with deliberate indifference and that the "pain" and other symptoms he suffered had a sufficient impact on his physical well being and that his case should proceed to trial on both his claimed physical injuries and his other claims of anxiety and other psychological trauma.
Finally, the court finds patently incorrect the defendants' contention at footnote 1 of their reply brief that Davis must submit expert testimony to support his case because that is what is necessary in medical malpractice cases. First, this is not a medical malpractice case. Secondly, this is not a motion for summary judgment; therefore, even if this case were likened to a medical malpractice case such evidence would not be necessary to defeat this motion to dismiss.
CONCLUSION
For the foregoing reasons it is hereby recommended that the defendants' motion to dismiss at docket No. 47 be DENIED.
Pursuant to D.Ak.L.M.R. 6(a), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than the close of business December 8, 2003, to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation United States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be no later than the close of business December 22, 2003. The parties shall otherwise comply with provisions of D.Ak.L.M.R. 6(a).
Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).