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Hoak v. Attorney General

United States District Court, Ninth Circuit

May 29, 2013

LARRY M. HOAK, Plaintiff,


B. LYNN WINMILL, Chief District Judge.

The Complaint of Plaintiff Larry M. Hoak was conditionally filed by the Clerk of Court on November 2, 2012, due to his status as an inmate and his request for in forma pauperis status. The Court is required to review the Complaint to determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A.

Having reviewed the record, and otherwise being fully informed, the Court enters the following Order.


1. Standard of Law

Each complaint filed by a prisoner seeking relief against a governmental entity or its employees must be reviewed by the Court to determine whether summary dismissal is appropriate. 28 U.S.C. § 1915A. The Court must dismiss a complaint or any portion thereof that states a frivolous or malicious claim, that fails to state a claim upon which relief can be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.

The Court's review of the Complaint is governed by two United States Supreme Court cases requiring a plaintiff to state facts, and not just legal theories, in a complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). In Iqbal, the Court made it clear that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." 129 S.Ct. at 1949. The United States Court of Appeals for the Ninth Circuit explained that these cases set forth two important pleading standards:

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.

Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

All claims must have arisen within the two-year statute of limitations period prior to the filing of the original Complaint . See Wilson v. Garcia, 471 U.S. 261 (1985) (later overruled only as to claims brought under the Securities Exchange Act of 1934, not applicable here); Idaho Code § 5-219. The statute of limitations is tolled while the inmate exhausts administrative grievance procedures pursuant to the Prison Litigation Reform Act (PLRA). Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005).

2. Plaintiff's Rule 10(c) Motions (Dkt. 7, 8, 9)

Plaintiff has filed several motions requesting that Federal Rule of Civil Procedure 10(c) be applied to his Complaint and his numerous exhibits submitted in support of his Complaint. Rule 10(c) provides:

A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.

As the Rule states, a "written instrument" is considered a part of a pleading. However, the items Plaintiff wishes to incorporate into his pleading are not "written instruments" such as copies of contracts or negotiable instruments. See Rose v. Bartle, 871 F.2d 331, 339 n. 3 (3d Cir.1989) (internal quotation omitted) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1327) (holding that an attached affidavit was not a "written instrument" under Rule 10(c) and thus was not properly considered part of the pleadings); Nkemakolam v. St. John's Military School, 876 F.Supp.2d 1240, 1246-47 (D.Kan. 2012) (an x-ray and a photograph were "not intended as assertions of fact, " but were "clearly intended as evidence to support specific factual allegations by plaintiffs"). Plaintiff's exhibits are medical records, a surgery photograph, inmate concern forms, prison grievances, and letters.

The Court regularly permits pro se litigants to affix exhibits to their pleadings. However, the Court does not consider the exhibits to be "incorporated by reference" into the complaint such that a defendant would be required to respond to the exhibits when answering such a complaint. To the extent that Plaintiff's exhibits are legible and relevant to Plaintiff's claims, the Court has considered them with regard to whether Plaintiff has stated a claim, or would be able to amend his Complaint to state a claim, pursuant to the Court's duty to screen cases under 28 U.S.C. §§ 1915 and 1915A.

Accordingly, these Motions will be denied, and the exhibits will remain as exhibits only, and will not be incorporated by reference into the Complaint such that Defendants must respond to the exhibits in their Answer. The exhibits need not be filed again by Plaintiff, and the parties may refer to them at appropriate times in the course of this case, as needed.

Plaintiff shall not file any further exhibits, however, until the case reaches an appropriate stage to do so, such as in support of a response to a motion to dismiss or for summary judgment. Plaintiff is reminded that discovery is not to be filed with the Court, but only exchanged between parties at the appropriate time.

3. Review of Claims

A. Standard of Law

To state a claim under § 1983, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Vague and conclusory allegations of official participation in civil rights violations are not sufficient. See Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Rather, "[l]iability under section 1983 arises only upon a showing of personal participation by the defendant." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (there is no respondeat superior liability under §1983).

In Starr v. Baca , the United States Court of Appeals for the Ninth Circuit clarified that a supervisory defendant may be held liable under § 1983 if there is "a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." 652 F.3d at 1207. Allegations sufficient to show a causal connection include:

(1) "setting in motion a series of acts by others"; (2) "knowingly refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury"; (3) failing to act or improperly acting in "the training, supervision, or control of his subordinates"; (4) "acquiesc[ing] in the constitutional deprivation"; or (5) engaging in "conduct that showed a reckless or callous indifference to the rights of others." Id. at 1207-08 (internal quotations and punctuation omitted).

To state a claim under the Eighth Amendment, Plaintiff must allege facts showing that he is incarcerated under conditions posing a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Plaintiff must also state facts showing that Defendants were deliberately indifferent to the substantial risk of serious harm. Deliberate indifference exists when an official knows of and disregards a condition posing a substantial risk of serious harm or when the official is "aware of facts from which the inference could be drawn that a substantial risk of harm exists, " and actually draws the inference. Id., 511 U.S. at 837.

B. Summary of Allegations

Plaintiff alleges that he received inadequate dental care because the dentist decided to pull Plaintiff's problematic teeth, rather than fixing them. Plaintiff also alleges that he is receiving inadequate care for his diabetes, and, particularly, that he has not been given special shoes for his foot problems arising from diabetes. Another claim against several Defendants surrounds a bleeding ulcer. Plaintiff also brings various claims regarding receiving medication.[1] The acts complained of occurred between 2009 and 2012, some of which are beyond the statute of limitations. (Complaint, Dkt. 3, filed November 2, 2012.)

C. Individual Defendants

(1) Dentist Mark Cushing

In the Complaint, Plaintiff states: "I almost died twice when Mark Cushing pulled my abscessed bottom right lower teeth[;] it almost killed me." (Dkt. 3, p. 9.) A Grievance that was returned to Plaintiff on June 14, 2010, further explains: "I've had serious problems with the work (Mark Cushing) has done to my mouth. My mouth, jaw bone, the nerve damage done to my bottom left side, my teeth hurt on the front, left to right, my two upper front teeth. My mouth is a mess." (Complaint Exhibits, Dkt. 1, p. 59.) This entire set of complaints is beyond the statute of limitations period (only claims from between roughly October 2, 2010, to November 2, 2012 may be pursued).

Plaintiff alleges that, in April 2012, Dr. Cushing extracted Plaintiff's teeth rather than saving them or sending Plaintiff to a specialist who could have saved the teeth. Plaintiff has submitted Grievances and other documents showing that his teeth were not healthy enough to be saved, and that the only options were keeping the existing partial that attached to the lower teeth, or pulling the teeth and be fitted with a complete lower denture. (Dkt. 1, Exhibits, p. 66.)

Without more, Plaintiff has not stated sufficient allegations to support an Eighth Amendment deliberate indifference claim. Simply making a choice between extraction of a patient's damaged teeth and another resolution of his dental problems is not a constitutional concern.

Plaintiff also alleges that, after Dr. Cushing pulled the four teeth using novocaine, Plaintiff was not given narcotic pain medication to address pain issues after that procedure was performed. Plaintiff alleges that he suffered from pain for five days. Plaintiff alleges that Dr. Cushing chose to give him a different medication because other employees had accused him of "cheeking" (not swallowing) other medications. When Plaintiff wrote an Offender Grievance Form about this issue, employee Jennifer Grace wrote back: "D[ue] to your history of non compliance and being caught cheeking our protocol is not to provide additional narcotics. You were on an anti-inflammatory which would relieve dental associated pain." (Exhibit to Complaint, Offender Concern Form of 4-20-13.) A Grievance Form, No. II XXXXXXXXX, complained that Plaintiff's mouth and chin were infected on March 30, 2012. Plaintiff was provided with Penicillin for the infection.

Plaintiff has provided no allegations that would support a deliberate indifference claim against Dr. Cushing regarding his decision to follow the medical unit's guidance regarding providing Plaintiff with an anti-inflammatory type of pain medication rather than a narcotic pain medication when Plaintiff reportedly had been misusing his medication. Plaintiff was also provided with an antibiotic for infection. While Plaintiff contests the medical unit's conclusion that he was misusing his medication, that is not at issue regarding Dr. Cushing, because nothing shows that Dr. Cushing was personally aware that the medical unit's conclusions were incorrect, and nothing shows that Dr. Cushing chose a course of medication based on deliberate indifference rather than appropriate medical judgment. The response to the Grievance states: "Your case has been thoroughly investigated and there are multiple pages of documentation stating ...

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