Eidem v. Glebe

JERAMIE EIDEM, Plaintiff,

v. PATRICK GLEBE, SARA SMITH, LINDA BODINE, STEVE HAMMOND,and JOHN AND JANE DOES 1-3 (DOC CARE REVIEW COMMITTEE MEMBERS), Defendants.

No. C11-5716 RBL/KLS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

Dated: May 10, 2012

ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE A

SECOND AMENDED COMPLAINT AND TO STAY

Before the Court is Plaintiff's Motion for Leave to File a Second Amended Complaint and a 70 Day Stay "To Correct Deficiencies". ECF No. 15. Having considered the motion, Defendants' opposition (ECF No. 18), Plaintiff's reply (ECF No. 19), and balance of the record, the Court finds that Plaintiff's motion to amend and stay should be denied.

BACKGROUND

On September 8, 2011, Plaintiff filed a 42 U.S.C. §1983 civil rights complaint alleging that his Eighth Amendment rights were violated when he was denied a CPAP machine as treatment for sleep apnea. ECF No. 5. Before the Defendants answered, Plaintiff filed an Amended Complaint on October 11, 2011. ECF No. 9. The Defendants filed their answer to the Amended Complaint on November 14, 2011. ECF No. 13. In his First Amended Complaint,Plaintiff alleges Eighth Amendment violations against the individual Defendants, but expanded on his factual allegations. Id.¹

In the instant motion, Plaintiff seeks to add the Washington Office of Financial Management (OFM) and John & Jane Does (1-10) "As Unknowns" as Defendants. He also seeks to add several new federal claims under the Americans with Disabilities Act, the Rehabilitation Act, the First Amendment, the Equal Protection Clause, and conspiracy. Also included in Plaintiff's new proposed claims are state tort claims (listed in ¶ 4 of the proposed amended Complaint (civil conspiracy, negligence, malpractice, outrage, and negligent infliction of emotional distress). ECF No. 15-1. Along with his proposed amended complaint, Plaintiff filed a motion to stay this action for seventy days while he exhausts his administrative remedies with regard to his state tort claims. ECF No. 15, ¶¶ 13-16.

Pages 13, 14, and 15 of the proposed Second Amended Complaint filed with the Court are missing. However, based on the proposed complaint as submitted to the Court and the briefing of the parties, the Court is able to fully determine the merits of the motion.

DISCUSSION

Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that a party may amend the party's pleading only by leave of the court or by written consent of the adverse party and that leave shall be freely given when justice so requires. However leave to amend is not to be granted automatically. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). The United States Supreme Court has recognized several reasons for a court to legitimately denyleave to amend. Among those reasons are undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962).

"The liberal amendment rules of Fed. R. Civ. P. 15(a) do not require that courts indulge in futile gestures." Deloach v. Woodley, 405 F.2d 496, 497 (5th Cir. 1968). If a proposed amendment could not withstand a motion to dismiss, a court is justified in denying a motion to amend the pleadings made pursuant to Rule 15(a). Jones v. Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646 (9th Cir. 1984); Glick v. Koenig, 766 F.2d 265 (7th Cir. 1985).

Plaintiff asserts that the primary purpose of his second amendment is to correct his lack of compliance with the notice of claim procedure set forth in Wash. Rev. Code § 4.92.100. RCW 4.92.100 requires that claims for damages arising from the tortious conduct of state employees be submitted to the State of Washington, Office of Financial Management, Office of Risk Management. The failure to file a claim results in dismissal. Kleyer v. Harborview Med. Ctr., 76 Wn. App. 542, 545, 887 P.2d 468 (1995). Compliance with the statutory notice procedures is jurisdictional. Levy v. State, 91 Wn. App. 934, 957 P.2d 1272 (1998) (failure of claimant to verify claim form as required by Wash Rev. Code § 4.92.100 deprived court of jurisdiction).

Plaintiff concedes that he did not file a tort claim with the Office of Risk Management until March 20, 2012, well after filing this lawsuit. ECF No. 19, at 19. However, the claims asserted by Plaintiff in his First Amended Complaint are all federal constitutional claims and he does not need to file a claim with the State of Washington with regard to those claims. Thus,Plaintiff's stated reason for the need to amend to correct the notice "deficiency" does not apply to either his existing federal claims or his proposed federal claims. As to any newly asserted state tort claims, Plaintiff concedes that he did not file a claim with the State prior to filing this lawsuit as required by RCW 4.92.100 and requires that he be allowed either to withdraw those claims or the Court should dismiss the state claims. Plaintiff's proposed new federal and state claims are discussed in more detail below.

A. Federal Claims

To state a claim under 42 U.S.C. § 1983, at least two elements must be met: (1) the defendant must be a person acting under color of state law; and (2) his conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). Implicit in the second element is a third element of causation. See Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 286-87 (1977); Flores v. Pierce, 617 F.2d 1386, 1390-91 (9th Cir. 1980), cert. denied, 449 U.S. 875 (1980). The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); see also Rizzo v. Goode, 423 U.S. 362, 370-71, 375-77 (1976). Sweeping conclusory allegations against an official are insufficient to state a claim for relief. The plaintiff must set forth specific facts showing a causal connection between each defendant's actions and the harm allegedly suffered by plaintiff. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); Rizzo, 423 U.S. at 371.

Vague and conclusory allegations of official participation in civil rights violations are not sufficient. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). Absent some personalinvolvement by the defendants in the allegedly unlawful conduct of subordinates, they cannot be held liable under § 1983. Johnson v. Duffy, 588 F.2d 740, 743-744 (9th Cir. 1978). When a plaintiff fails to allege or establish one of the three elements, his complaint must be dismissed.

1. First Amendment Right to Grievance

Plaintiff alleges in his proposed Second Amended Complaint that the First Amendment provides the right to file a prison grievance.² ECF No. 15-1, ¶40.

Inmates have no constitutional right to a prison grievance system. Mann v. Adams, 855 F.2d 639 (9th Cir. 1988), cert. denied, 109 S. Ct. 242 (1988); Stewart v. Block, 938 F. Supp. 582 (C.D. Cal. 1996); Hoover v. Watson, 886 F. Supp. 410 (D. Del. 1995) (aff'd, 74 F.3d 1226). Moreover, if the state elects to provide a grievance mechanism, violations of its procedures do not give rise to §1983 claims. Hoover v. Watson, supra,; Brown v. G.P. Dodson, 863 F. Supp. 284, 285 (W.D. Va. 1994); Allen v. Wood, 970 F. Supp. 824, 832 (E.D. Wash. 1997).

Plaintiff makes no specific allegations regarding any of the named Defendants as to this claim. Instead, he merely alleges that "Washington DOC while having a relatively non-arbitrary grievance process on paper uses it to cover up for staff misconduct" and that the "administrative process" put in place by the DOC denied him his right to "receive meaningful review." ECF No. 15-1, ¶¶ 41, 68. These allegations are too vague to support a First Amendment claim.

2. Americans with Disabilities Act

Plaintiff seeks to add claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 and the Rehabilitation Act (RA), 29 U.S.C. § 794. Plaintiff alleges that his disabilities include sleep apnea and drug addiction. ECF No. 15-1, ¶¶ 24-36. Certain sections of the ADAand RA apply in the prison context. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 208 (1998); Duffy v. Riveland, 98 F.3d 447, 453-54 (9th Cir. 1996). Claims under the ADA and RA are subject to the same legal analysis. Duffy, 98 F.3d at 456.

Under the ADA and RA, the Plaintiff must prove that (1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of a public entity's services, programs or activities; (3) the claimant was excluded from, denied the benefits of, or discriminated against with respect to the services, program or activities; and (4) the exclusion, denial or discrimination was by reason of the claimant's disability. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); 42 U.S.C. § 12132; 29 U.S.C. § 794.

The ADA defines a disability as:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2).

A qualified individual is:

[A]n individual with a disability who, with or without reasonable modifications to rules, policies, the removal of architectural barriers, or the provision of auxiliary aids or services, meets the essential eligibility requirements of receipt of services or the participation in programs or activities provided by a public entity.

42 U.S.C. § 12131(2) (emphasis added); see also 28 C.F.R. § 35.104.

Even assuming that the Plaintiff's pre-incarceration drug...