(PC) Duncan v. California Healthcare Receivership Corp.

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 DIONTAE JOHAN DUNCAN, Case No. 1:20-cv-01288-KES-SKO (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

TO GRANT DEFENDANT TAYLOR’S

13 v. MOTION TO DISMISS

14 CALIFORNIA HEALTHCARE (Doc. 101)

RECEIVERSHIP CORP., et al.,

15 14-DAY OBJECTION PERIOD

Defendants.

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17 Plaintiff Diontae Johan Duncan is proceeding pro se and in forma pauperis in this civil

18 rights action brought pursuant to 42 U.S.C. § 1983.

19 I. INTRODUCTION

20 On June 1, 2023, then assigned District Judge Ana de Alba issued an Order Adopting

21 Findings and Recommendations to Dismiss Certain Claims and Defendants from Plaintiff’s

22 Second Amended Complaint. (Doc. 80.) The action was ordered to “proceed only on the Eighth

23 Amendment deliberate indifference to serious medical needs claims pursuant to 42 U.S.C. § 1983

24 against Defendants Marciel, Graywall, Taylor, Gerderal, and Jane Does #1 and #2 (Claim I) in

25 Plaintiff’s second amended complaint,” the remaining claims were dismissed, and Defendants

26 California Healthcare Receivership Corp., Warden C. Phifer, and Psychologist Rubish were

27 dismissed. (Id. at 3.)

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1 Following service of process, on November 15, 2023, Defendant Taylor filed a motion to

2 dismiss the claim against him in Plaintiff’s second amended complaint. (Doc. 101.) Plaintiff filed

3 an opposition on November 27, 2023 (Doc. 104), and Defendant Taylor filed a reply on

4 December 6, 2023 (Doc. 108).

5 On November 28, 2023, the Court issued its Order Granting Stay of Responsive Pleading

6 Deadline as to Defendants Marciel, Gallienne III1 and Grewal.2 (Doc. 106.) The Court stated it

7 would “reset the responsive pleading deadline following resolution of Defendant Taylor’s motion

8 to dismiss.” (Id. at 4.)

9 II. THE BRIEFING

10 Defendant Taylor’s Motion

11 Defendant Taylor contends Plaintiff’s “sparse allegations” comprising two lines in the

12 second amended complaint are insufficient to give Taylor fair notice of the claim, and Plaintiff

13 fails to comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure.

14 (See Doc. 101-1.) Taylor asserts Plaintiff’s allegations that “Taylor ‘ignored a suicide cry for

15 help’ and ‘Plaintiff acted on his poor impulses and swallowed 200 pills and scared [sic] his heart

16 to a 1st degree opt condition,’” can be interpreted multiple ways. (Id. at 4) On the one hand, the

17 allegations can be interpreted to mean the “suicide cry for help” and the pill consumption were a

18 single event ignored by Defendant Taylor. (Id.) On the other hand, those facts may be describing

19 two separate events—an earlier “cry for help” and a subsequent attempted suicide. (Id.) Taylor

20 contends such vague language cannot form the basis of a claim under Rule 8 because it does not

21 put him on notice of his allegedly unlawful conduct. (Id.)

22 Taylor also asserts the second amended complaint “is fatally ambiguous as to when these

23 allegations occurred” because Plaintiff did not provide any timeframe regarding the harm Taylor

24 purportedly caused. (Id.) Taylor contends Plaintiff’s assertion that he was harmed between March

25 17, 2017, and April 1, 2022, amounts to a vague five-year time span that, coupled with the vague

26 allegations, presents unfair obstacles for Taylor’s investigation and defense. (Id. at 4-5.) Taylor

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1 This individual was identified as W. Gerderal III in Plaintiff’s second amended complaint.

28 2 This individual was identified as G. Graywall in Plaintiff’s the second amended complaint.

1 states he should not have to guess or speculate as to Plaintiff’s allegations against him and

2 requests that the Court grant the motion and dismiss Plaintiff’s claim against him without

3 prejudice. (Id. at 5.)

4 Plaintiff’s Opposition

5 Plaintiff contends his second amended complaint includes claims against two individuals

6 named Taylor.3 (Doc. 104 at 2.) One Taylor’s actions involved “dropp[ing] Plaintiff to lowest

7 level” of mental health care despite Plaintiff having “just returned from acute DSH CMF

8 Vacaville” “around March 17th.” (Id.) Plaintiff asserts “(#1) Taylor E.O.P. supervisor[]” was

9 deliberately indifferent. (Id.) Plaintiff asserts “Taylor #2 is a LCSW” failed to respond “to serious

10 call of a suicidal ideation” because Plaintiff was psychotic. (Id. at 3.) Plaintiff asserts that “after

11 contact” with that individual, he swallowed “2 Reslux Inhalers and unknown seizure pills from

12 cellmate.” (Id.) “Taylor #2” did not adequately respond to Plaintiff’s “actual suicide factual

13 attempt.” (Id. at 3-4.)

14 Plaintiff states his “other two complaints” involve “2 sets of Taylors.” (Doc. 104 at 4.)

15 Plaintiff seeks “oral argument” to clarify the issue of two individuals bearing the same surname.

16 (Id. at 4-5.)

17 Defendant Taylor’s Reply

18 Defendant Taylor contends Plaintiff’s opposition fails to dispute any of the facts or legal

19 arguments raised in his motion. (Doc. 108 at 2.) Defendant contends Plaintiff’s assertions that

20 there are two individuals named Taylor in his second amended complaint bolsters Defendant’s

21 motion to dismiss because there is also ambiguity concerning his identity. (Id. at 2-3.) Defendants

22 contend that Plaintiff’s second amended complaint must be complete in itself without reference to

23 prior complaints. (Id. at 3.)

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25 //

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3 Plaintiff’s motion filed December 6, 2023 (Doc. 109), concerning the “Taylor” defendant or defendants,

is pending before the assigned district judge.

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1 III. APPLICABLE LEGAL STANDARDS

2 A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a claim.” Navarro

3 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In resolving a 12(b)(6) motion, the Court’s review is

4 generally limited to the “allegations contained in the pleadings, exhibits attached to the complaint,

5 and matters properly subject to judicial notice.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519

6 F.3d 1025, 1030-31 (9th Cir. 2008) (internal quotation marks & citations omitted). Dismissal is

7 proper if there is a “lack of a cognizable legal theory or the absence of sufficient facts alleged

8 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

9 1988) (citation omitted).

10 “To survive a motion to dismiss, a complaint must contain sufficient factual matter,

11 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

12 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court

13 “accept[s] as true all well-pleaded allegations of material fact, and construe[s] them in the light

14 most favorable to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998

15 (9th Cir. 2010) (citation omitted). In addition, the Court construes pleadings of pro se prisoners

16 liberally and affords them the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.

17 2010) (citation omitted). However, “the liberal pleading standard … applies only to a plaintiff’s

18 factual allegations,” not his legal theories. Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989).

19 A complaint must contain “a short and plain statement of the claims showing that the

20 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Such a statement must simply give the

21 defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”

22 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (internal quotation marks & citation

23 omitted). This standard is liberally applied to ensure that claims are determined on their merits.

24 Id. Pleadings prepared by pro se plaintiffs “however inartfully pleaded are held to less stringent

25 standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980)

26 (internal quotations & citations omitted). Detailed factual allegations are not required, but

27 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

28 statements, do not suffice.” Iqbal, 556 U.S. at 678.

1 IV. DISCUSSION

2 The Second Amended Complaint4

3 In his first claim for relief asserting an Eighth Amendment deliberate indifference to

4 serious medical needs claim, Plaintiff states he was dropped to the lowest level of mental health

5 care on March 17, 2017, and from that date through April 1, 2022, he has decompensated and

6 suffered injury. (Doc. 52 at 3.) He contends Defendants Marciel and Grewal were responsible for

7 dropping him to the lowest level of care. (Id. at 5.)5 Plaintiff alleges “LCSW Taylor ignored a

8 suicide cry for help, plaintiff acted on his poor impulse and swallowed 200 pills and scared [sic]

9 his heart to a 1st degree opt condition.” (Id. at 5.)

10 Regarding his second claim for relief asserting a Fourteenth Amendment due process

11 violation,6 Plaintiff states “a sign cry for help denied by [Taylor] LCSW plaintiff committed

12 suicide attempt 200 pills on Taylors watch.” (Doc. 52 at 6.) Plaintiff also alleges the defendants

13 collectively “conspired lies and covered up records,” stating “from 3/[indecipherable]/2017 when

14 T. Taylor and G. Grewal [lowest] care drop upon plaintiffs return from acute mental hospital

15 [illegally] though deliberately for it was done.” (Id. at 6-7.) Plaintiff states “again and again” he

16 suffered injuries “at different approx. times from 3/17/2017 until 4/1/2022.” (Id. at 7.)

17 Analysis

18 A review of the second amended complaint and Plaintiff’s opposition to Defendant

19 Taylor’s motion reveals the Eighth Amendment deliberate indifference to serious medical needs

20 claim against Defendant Taylor is insufficiently pled because it violates Rule 8 of the Federal

21 Rules of Civil Procedure. Liberally construing the complaint, and considering Plaintiff’s

22 opposition, the Court finds Plaintiff’s allegations against Defendant Taylor lack the specificity

23 required to provide Taylor with fair notice. Swierkiewicz, 534 U.S. at 512. It is unclear when

24 Taylor purportedly denied Plaintiff’s “suicide call for help” or “sign cry for help.”

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4 Plaintiff’s handwritten 8-page complaint is comprised of five pages from a civil rights complaint form

26 and three additional pages.

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5 This contradicts Plaintiff’s assertion in his opposition that Defendant Taylor alone was the responsible

party.

28 6 This claim was dismissed on June 1, 2023. (See Doc. 80 at 2.)

1 While Plaintiff references March 17, 2017, in Claim I,7 that is the date Plaintiff asserts

2 Defendants Marciel and Grewal—not Defendant Taylor—“dropped” him to the lowest level of

3 mental health care. Rizzo v. Goode, 423 U.S. 362, 373-75 (1976) (plaintiff must show a causal

4 connection or link between the actions of the defendants and the deprivation alleged to have been

5 suffered by the plaintiff); Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (vague and

6 conclusory allegations concerning the involvement of supervisory personnel in civil rights

7 violations are not sufficient). That leaves only vague and ambiguous references to a time frame

8 between March 17, 2017, and April 1, 2022. Iqbal, 556 U.S. at 678. Also, it is unclear when, or

9 even how long before or after the “cry for help,” Plaintiff swallowed 200 pills during a suicide

10 attempt. Iqbal, 556 U.S. at 678; see also Rosen v. Hollywood Show, LLC, No. 2:18-cv-00215-

11 CAS(Ex), 2018 WL 1684314, at *3 (C.D. Cal. Apr. 4, 2018) (“While plaintiff is not required to

12 allege a precise date or location concerning defendants’ alleged [conduct], in order to satisfy Rule

13 8(a) and provide fair notice of plaintiff's claim to defendants, plaintiff should allege when,

14 generally, the alleged [conduct] took place and where, generally, this alleged infringement

15 occurred”).

16 Plaintiff was advised on more than one occasion that an amended complaint must be

17 complete in itself because it supersedes any earlier version. (See, e.g., Doc. 27 at 8; Doc. 46 at 4;

18 Doc. 49 at 3.) Plaintiff may not simply refer to a previous complaint and his second amended

19 complaint should include all relevant facts even if they were previously asserted in an earlier

20 complaint. See Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012); see also Local Rule

21 220 (“every pleading to which an amendment … is permitted as a matter of right or has been allowed

22 by court order shall be retyped and filed so that it is complete in itself without reference to the prior or

23 superseded pleading”). Therefore, the Court will not review or consider earlier versions of

24 Plaintiff’s claim for the purposes of resolving Defendant Taylor’s motion.

25 In sum, Defendant Taylor’s motion to dismiss Plaintiff’s second amended complaint

26 should be granted. Plaintiff should be afforded a final opportunity to file a third amended

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7 In the facts associated with Claim II (the Fourteenth Amendment claim that has been dismissed),

28 Plaintiff attributes this conduct to Taylor and Grewal.

1 complaint. Any third amended complaint must be “complete in itself without reference to the

2 prior or superseded pleading.” Local Rule 220. Stated another way, Plaintiff must ensure his third

3 amended complaint includes any and all facts relevant to his claims against Defendant Taylor

4 and all other named defendants.

5 Finally, as noted in footnote 3, Plaintiff’s motion concerning two defendants named “T.

6 Taylor” will be decided by the assigned district judge. The motion challenges Judge de Alba’s

7 June 2023 order adopting the findings and recommendations to dismiss certain claims and

8 defendants. Judge de Alba’s order indicates this action proceeds, in part, on a claim asserting a

9 constitutional violation against one individual named T. Taylor, rather than two.

10 In any third amended complaint, Plaintiff must set forth sufficient facts concerning the

11 conduct of those individuals. The facts alleged in Plaintiff’s second amended complaint all appear

12 to relate to the “T. Taylor” employed as a licensed clinical social worker. A review of the second

13 amended complaint revealed no additional facts concerning a “T. Taylor” employed as an “E.O.P.

14 supervisor.” Therefore, Plaintiff is cautioned to allege facts plainly and separately, including the

15 relevant dates or approximate dates for the conduct he attributes to any individual named Taylor

16 and to clearly identify the individual Taylor.

17 V. CONCLUSION AND RECOMMENDATIONS

18 Based upon the foregoing, the Court RECOMMENDS that:

19 1. Defendant Taylor’s motion to dismiss (Doc. 101) be GRANTED;

20 2. Plaintiff’s second amended complaint be DISMISSED with leave to amend;

21 3. Plaintiff be DIRECTED to file a third amended complaint, complete in itself, within

22 30 days of any order adopting these findings;

23 4. The stay of the responsive pleading deadline (see Doc. 106) be LIFTED and that

24 Defendants Marciel, Gallienne III, and Grewal be DIRECTED to file a responsive

25 pleading within 60 days of any order adopting these findings, or within 30 days of the

26 filing of the third amended complaint.

27 These Findings and Recommendations will be submitted to the district judge assigned to

28 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these

1 Findings and Recommendations, a party may file written objections with the Court. The

2 document should be captioned, “Objections to Magistrate Judge’s Findings and

3 Recommendations.” Failure to file objections within the specified time may result in waiver of

4 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.

5 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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8 Dated: August 9, 2024 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

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