Case 2:08-cv-04454-GHK-FMO Document 1 Filed 07/08/2008 Page 1 of 14

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1

Plaintiff KEVIN JACKSON hereby brings the instant class action

2 complaint against the named Defendants, who are employees of the California

3 Department of Corrections and Rehabilitation (“CDCR”), a public entity, and

4 DOE Defendants 1 through 10, inclusive, who are also believed to be employees

5 or agents of the CDCR or other departments of the State of California, and alleges

6 as follows:

7

JURISDICTION AND VENUE

8

1. This action arises under the United States Constitution and the Civil

9 Rights Act pursuant to 42 U.S.C § 1983 and the Eighth and Fourteenth

10 Amendments to the United States Constitution, wherein Plaintiff seeks to redress

11 deprivations by Defendant, and Unknown Named Defendants 1 through 10.

12 Jurisdiction of this Court is invoked under 28 U.S.C. §§1331, and 1343 and the

13 aforementioned statutory and constitutional provisions. Plaintiff further invokes

14 the supplemental jurisdiction of this Court to hear and decide claims arising under

15 state law.

16

2. At all times mentioned herein, all defendants were acting under color

17 of state law, or rights secured to plaintiff by the Eighth and Fourteenth

18 Amendments to the United States Constitution and the laws of the United States.

19 This court has supplemental jurisdiction over those claims asserted under state law

20 by virtue of 28 U.S.C. Section 1367.

21

3. Venue is founded in this judicial district upon 28 U.S.C § 1391 as the

22 acts complained of arose in this district.

23

THE PARTIES

24

4. Plaintiff KEVIN JACKSON is an inmate of the California State

25 Prison at Solano (“CSP Solano”). Plaintiff is infected with the hepatitis C virus

26 (“HCV”) and has not received adequate treatment for it, as will be later explained.

27

5. Defendant ROBIN DEZEMBER is the Director of the Division of

28 Correctional Health Care Services of the California Department of Corrections

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COMPLAINT

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1 and Rehabilitation. He is an employee of the State of California. He is

2 responsible for establishing health care policies for the prison system in the State

3 of California. He is alleged to have been acting, at all times relevant to this case,

4 in both his individual and official capacities and under the color of state law

5 within the meaning of 42 USC § 1983.

6

6. DOE DEFENDANTS 1 TO 10 ARE EMPLOYEES OF THE STATE

7 OF CALIFORNIA. Their identities are presently unknown. The Complaint will

8 be properly amended to identify them by name when their identities are

9 discovered.

10

HEPATITIS BACKGROUND

11

12

7. The California Department of Corrections and Rehabilitation

13 operates the largest prison system in the free world. There are approximately

14 190,000 inmates incarcerated in California prisons. Approximately 40 percent of

15 them are infected with the hepatitis C virus.

16

8. The hepatitis C virus is one of the most important causes of chronic

17 liver disease in the United States. It is an RNA virus. While it accounts for 15

18 percent of acute viral hepatitis, it is responsible for nearly 70 percent of chronic

19 hepatitis, and up to 50 percent of cirrhosis, end-stage liver disease, and liver

20 cancer in the United States. Chronic hepatitis C is the most common reason for

21 liver transplantation in the United States.

22

9. The hepatitis C virus mutates rapidly and changes the protein

23 composition of the protein envelope which surrounds it. This allows it to evade

24 the immune system and, for this reason, it has been difficult to develop a vaccine

25 to hepatitis C. Parenthetically, this is distinctly different than hepatitis A and B,

26 for which there are very effective vaccines. There are 6 major genotypes and

27 over 50 subtypes of the hepatitis C virus. The different genotypes have different

28 geographic distributions. Genotypes 1a and 1b are the most common in the

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COMPLAINT

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1 United States (75 percent of cases). Genotypes 2 and 3 are present in 10 to 20

2 percent of patients in the United States. There is little difference in the severity of

3 disease or outcome of patients infected with the different genotypes. However,

4 the genotype helps determine the length of HCV therapy and the likelihood of

5 treatment response. Patients with genotypes 2 and 3 may respond better to

6 antiviral treatment.

7

10. Hepatitis C transmission occurs primarily through exposure to

8 infected blood. It is mainly spread through the use of shared, unsterilized needles,

9 syringes and other drug paraphernalia among injection drug users. According to

10 the United States Department of Health and Human Services, population studies

11 indicate that approximately 4 million Americans have been infected with hepatitis

12 C, of whom 3 million have chronic infection. Actually, this number is widely

13 recognized to be an underestimate as it is based on the National Health and

14 Nutrition Examination Survey (NHANES) which was a household survey that did

15 not include certain groups with a substantially increased prevalence of infection,

16 such as persons who are incarcerated, homeless, or institutionalized (15 to 50

17 percent are infected). Nonetheless, based on statistics from this study,

18 approximately 75 percent of California inmates with hepatitis C would be

19 expected to have chronic hepatitis C infection (15 to 25 percent spontaneously

20 clear the virus). Persons aged 40 to 59 years have the highest prevalence of HCV

21 infection, and in this age group, the prevalence is highest in African Americans

22 (6.1 percent). African American men are the group least likely to spontaneously

23 clear the virus.

24

11. The biggest threat from hepatitis C infection is that the acute disease

25 fails to resolve in most instances and the disease advances to chronic hepatitis C.

26 As stated, the most common sequelae of chronic HCV infection are progressive

27 liver fibrosis leading to cirrhosis, end-stage liver disease and hepatocellular

28 carcinoma. As will be discussed below, treatment is most effective when the

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COMPLAINT

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1 degree of fibrosis is minimal.

2

12. HCV infection is diagnosed by blood tests. These tests detect

3 antibodies that the body makes to the hepatitis C virus. If the patient is

4 determined to have detectable virus in his blood over a period of months, he/she is

5 considered to have chronic hepatitis C. The standard of care for treatment in the

6 United States has been set forth by the National Institutes of Health. The NIH has

7 set forth standards for treatment since 1997. These standards were revised in 2002

8 based on new data and therapeutic advances. These are the standards of care

9 applied throughout the United States to the non-inmate population.

10

13. Once a patient is determined to have chronic hepatitis, then he/she

11 should be treated with a combination of two drugs (pegylated interferon and

12 ribavirin) if the infection is with genotypes 2 or 3. The drugs should be given for

13 24 weeks.

14

14. If the patient is infected with genotype 1, then he/she should be

15 offered a liver biopsy. Plaintiffs are informed and believe that liver biopsies are

16 not being offered to all inmates with genotype 1 hepatitis C. A liver biopsy

17 provides a unique source of information. It is used to determine the amount of

18 scarring, or fibrosis, present in the liver and this information is critical to deciding

19 on whether to treat with the antiviral drugs. The Metavir System is most

20 commonly used to score liver fibrosis. The score ranges from F0 to F4, with F0

21 meaning no fibrosis and F4 signifying cirrhosis (also called Stages 0 to 4). If

22 there is no fibrosis (F0) , the patient does not need treatment and can be followed

23 with a repeat biopsy in 3 to 5 years. If, on the other hand, the patient has a score

24 of F1, many experts would recommend treatment. The National Institutes of

25 Health Consensus Panel on HCV recommends treatment for patients with scores

26 of F1 or higher. This is the same recommendation made by the American

27 Association of the Study of Liver Disease.

28

15. Virtually all experts, however, recommend treatment for patients

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COMPLAINT

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1 with Stage II disease by liver biopsy. However, the California Department of

2 Corrections and Rehabilitation and their employees, including defendants herein,

3 refuse to treat patients with Stage II disease. Defendants require a more advanced

4 stage of liver damage before offering treatment to inmates and thus allow inmates’

5 disease to advance and make treatment less likely to succeed.

6

16. Contrary to the accepted standard of care, Defendants have

7 developed protocols which are intentionally designed to exclude inmates with

8 chronic hepatitis C from qualifying for liver biopsies and treatment. Even when

9 their own criteria call for a liver biopsy, plaintiffs are informed and believe that

10 defendants are not providing the biopsies.

11

PLAINTIFF’S DISEASE

12

17. Plaintiff Kevin Jackson is currently incarcerated at the California

13 State Prison at Solano.

14

18. Plaintiff Jackson is a 52-year old African American who was

15 diagnosed with chronic hepatitis C infection in 2000. He is infected with

16 genotype 1. He had a liver biopsy in 2000 which was normal. He did not have a

17 repeat liver biopsy until August 27, 2007, even though the standard of care is to

18 repeat the biopsy every five years.

19

19. On October 18, 2006, he was seen by a gastroenterologist at UC

20 Davis who advised Defendant Rohrer that the liver biopsy needed to be repeated

21 and advising Defendant Rohrer that liver biopsies are done every five years.

22

20. It took an additional 10 months for the liver biopsy to be repeated.

23 Plaintiff had a liver biopsy performed at the Sutter Solano Medical Center on

24 August 27, 2007. The biopsy revealed Stage II disease.

25

21. Mr. Jackson has repeatedly requested treatment for his chronic Stage

26 II hepatitis C infection. He has been refused treatment. He has exhausted his

27 administrative appeals and, to date, has not been treated for his hepatitis C

28 infection.

5
COMPLAINT

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1

CLASS ALLEGATIONS

2

22. Plaintiff KEVIN JACKSON brings this action on behalf of himself

3 and all persons incarcerated in an Adult Correctional Facility run by the State of

4 California Department of Corrections & Rehabilitation infected with hepatitis C

5 who, pursuant to Defendants’ policy, have been denied liver biopsies and

6 combination drug therapy for Stage II disease.

7

24. Plaintiff is informed and believes, and on that basis alleges, that this

8 class consists of thousands of persons, as Plaintiff is informed and believes that

9 40% of inmates have hepatitis C, tens of thousands of whom are believed to have

10 improperly been denied liver biopsies and combination drug therapy. Joinder of

11 all these persons would be impracticable.

12

25. The questions of law and fact presented in this case are common to

13 each and every member of the class, in that Defendants maintain a common policy

14 in all State run prisons denying generally accepted medical care to prisoners

15 infected with hepatitis C, including a standardized policy to deny or delay liver

16 biopsies and combination drug therapy to hepatitis C infected inmates unless and

17 until the inmate exceeds Stage II, which is contrary to the standard of care for the

18 non-incarcerated population.

19

26. Plaintiff is a proper representative of this class of persons because,

20 as will be more fully shown below, Plaintiff is a member of the class and the

21 claims Plaintiff is asserting in this complaint are typical of the claims of all

22 members of the class. Plaintiff's claims are not subject to any unique defenses nor

23 does any interest of Plaintiff in this litigation conflict with any other member of

24 the class.

25

27. Plaintiff contends certification as a class action under the provisions

26 of Federal Rule of Civil Procedure 23(b)(1)(A) is proper, as the prosecution of

27 separate actions would create a risk of inconsistent adjudications that would

28 establish incompatible standards of conduct for the party opposing the class.

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COMPLAINT

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1 Plaintiff further contends certification as a class action under the provisions of

2 Federal Rule of Civil Procedure 23(b)(2) is proper, as the party opposing the class

3 has acted or refused to act on grounds generally applicable to the class as whole,

4 thus making it appropriate that there be final injunctive relief or corresponding

5 declaratory relief with respect to the class as a whole.

6

FIRST CAUSE OF ACTION

7

VIOLATION OF CIVIL RIGHTS [42 U.S.C. §1983]

8

EIGHTH AMENDMENT

9

(By Plaintiff Against All Defendants)

10

28. Plaintiff hereby incorporates and realleges paragraphs 1 through 27

11 of this Complaint as though fully set forth above.

12

29. Plaintiff and members of the proposed class are all persons

13 incarcerated in an Adult Correctional Facility run by the State of California

14 Department of Corrections & Rehabilitation infected with hepatitis C at or below

15 Stage II. As alleged hereinabove, the standard of care, as set forth by the National

16 Institutes of Health, the Center for Disease Control in Atlanta, and by civilian

17 practice in California is to treat hepatitis C when it reaches Stage II. Based

18 thereon, Plaintiff alleges on that he and other similarly situated class members are

19 in serious need of liver biopsies and/or combination therapy for their stage II

20 hepatitis C, as a minimal civilized measure of life’s necessities. [Biopsies are not

21 necessary to initiate treatment of genotype 2 and 3 infections].

22

30. As alleged herein and above, Defendant maintains a policy and

23 practice of denying combination therapy unless and until an inmate’s disease is

24 advanced beyond Stage II. Based on this policy, Plaintiff and members of the

25 proposed Class will be and/or are irreparably harmed, as failure to provide

26 combination therapy at Stage II may lead to further injury due to advancement of

27 the disease. This denial of diagnostic evaluations (liver biopsies) and treatment

28 constitutes deliberate indifference as set forth in Estelle v. Gamble, 429 U.S. 97

7
COMPLAINT

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1 (1976). Defendant’s policies to delay and to deny care have been intentionally

2 promulgated and executed for financial reasons in complete disregard for the

3 medical needs of inmates with HCV infection. The policy was not promulgated

4 on the basis of legitimate differences in medical opinion but solely on the basis of

5 cost considerations and in disregard of the serious medical needs of inmates.

6

31. Moreover, if Defendant continues its policy and practice of

7 withholding combination therapy treatment for Stage II hepatitis C, there is a

8 substantial likelihood that Plaintiff and members of the proposed Class will be in

9 need of additional treatment from liver damage, including but not limited to liver

10 failure, cirrhosis and hepatocellular carcinoma. As their disease advances,

11 treatment becomes more difficult and less likely to succeed. Consequently, the

12 policy of non-treatment also places the non-incarcerated population at additional

13 risk of spread from untreated, paroled inmates.

14

32. Additionally, if defendant continues its refusal to treat Plaintiff with

15 combination therapy for Stage II hepatitis C, there is a substantial risk that

16 Plaintiff and members of the proposed class will suffer further unnecessary and

17 wanton infliction of pain as a result of likely complications associated with

18 hepatitis C.

19

33. Defendant’s policy and practice to fail and refuse to treat inmates

20 infected with hepatitis C at Stage II, was and is in deliberate indifference to class

21 member’s constitutional rights and violates the prohibition against cruel and

22 unusual punishment under the Eighth Amendment to the United States

23 Constitution.

24

34. At all relevant times, Defendants, in failing to treat Stage II hepatitis

25 C, has acted under color of State law to deprive Plaintiff and members of the

26 proposed class constitutionally protected rights including, but not limited to, the

27 right to be free of cruel and unusual punishment, guaranteed by the Eighth and

28 Fourteenth Amendments to the United States Constitution.

8
COMPLAINT

Case 2:08-cv-04454-GHK-FMO Document 1 Filed 07/08/2008 Page 10 of 14

1

35. Plaintiff, and all members of the proposed class have sustained and /

2 or are in immediate danger of sustaining irreparable injuries as a proximate result

3 of Defendant’s policy, including but not limited to serious liver damage, and

4 cirrhosis of the liver, liver failure, and hepatocellular carcinoma unless the

5 Defendant’s policy, practice and custom of denying treatment for Stage II

6 hepatitis C is declared unlawful and enjoined by this Court.

7

36. Plaintiff and members of the proposed class have no adequate or

8 speedy remedy at law for the conduct of Defendant described above. This action

9 for injunctive relief is the only means of securing prospective relief, preventing

10 Defendant from denying Plaintiff and members of the proposed class necessary

11 medical care. Plaintiff exhausted available administrative remedies, by filing the

12 appropriate internal administrative appeals.

13

PRAYER FOR RELIEF

14

WHEREFORE, Plaintiff prays for judgment against Defendant as follows:

15 AS TO EACH CAUSE OF ACTION AS APPLICABLE:

16

1. To enter declaratory judgment that defendants’ policies, practices and

17 customs of denying liver biopsies to persons eligible for them and combination

18 treatment to prisoners at Stage II hepatitis C is a violation of the prisoners Eighth

19 and Fourteenth Amendment Rights.

20

2. To preliminarily and permanently enjoin Defendant, its agents,

21 employees and all persons acting in concert with Defendant from subjecting

22 Plaintiff, the proposed class, and all other prisoners with hepatitis C at or below

23 state II to the unlawful, cruel and unusual punishment, of denying diagnostic liver

24 biopsies and combination therapy treatment.

25

3. For attorneys’ fees pursuant to 42 U.S.C. §1988;

26

4. For costs of suit herein;

27

5. For such other and further relief as the Court may deem proper.

28

9
COMPLAINT

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 Case 2:08-cv-04454-GHK-FMO Document 3 Filed 07/18/08 Page 1 of 2 Page ID #:17

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. CV 08-4454-GHK (FMOx)

Title

Jackson v. Dezember

Date July 18, 2008

Presiding: The Honorable

GEORGE H. KING, U.S. DISTRICT JUDGE

Beatrice Herrera Deputy Clerk

N/A Court Reporter / Recorder

N/A Tape No.

Attorneys Present for Plaintiffs: (none)

Attorneys Present for Defendants: (none)

Proceedings: (In Chambers) Order to Show Cause

On July 8, 2008, Plaintiff Kevin Jackson (“Plaintiff”) filed the above-captioned Complaint in this Court. The Complaint alleges that Plaintiff is an inmate of the California State Prison at Solano (“CSP Solano”). As such, Plaintiff appears to reside in Solano County, California. The Complaint further alleges that Defendant Robin Dezember (“Defendant”) is the Director of the Division of Correctional Health Care Services of the California Department of Corrections and Rehabilitation. The Complaint does not allege Defendant’s residence, although the Civil Cover Sheet, filed with the Complaint, states that Defendant also resides in Solano County. The Civil Cover Sheet also states that the claims in the Complaint arose in Solano County, which reflects the allegations in the Complaint regarding events occurring at CSP Solano. Solano County, California is within the Eastern District of California, Sacramento Division, and not the Central District of California.
As such, venue appears to be improper under 28 U.S.C. § 1391(a), since (1) Defendant does not reside in this district, (2) a substantial part of the events or omissions giving rise to these claims did not occur in this district, and (3) Plaintiff has not demonstrated why there is no other district in which this action may otherwise be brought and why personal jurisdiction would be proper over Defendant.
Here, Plaintiff has not provided an adequate showing as to why venue is proper in this District. Therefore, Plaintiff is ORDERED TO SHOW CAUSE, in writing, WITHIN TWELVE DAYS, as to why this matter should not be transferred to the Eastern District of California, Sacramento Division.
Plaintiff’s failure to timely and adequately show cause as required herein shall be deemed Plaintiff’s admission that venue is improper in this District. In that event, this action shall be transferred to the Eastern District of California, Sacramento Division.
IT IS SO ORDERED.
:

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 2

Case 2:08-cv-04454-GHK-FMO Document 3 Filed 07/18/08 Page 2 of 2 Page ID #:18

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. CV 08-4454-GHK (FMOx)

Title

Jackson v. Dezember

Date July 18, 2008

Initials of Deputy Clerk AB for

Bea

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 2 of 2

 
 Case 2:08-cv-04454-GHK-FMO Document 8 Filed 08/19/08 Page 1 of 1 Page ID #:27

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

E-Filed: JS-6

CIVIL MINUTES - GENERAL Case No. CV 08-4454-GHK (FMOx)

Title

Jackson v. Dezember

Date August 19, 2008

Presiding: The Honorable

GEORGE H. KING, U.S. DISTRICT JUDGE

Beatrice Herrera Deputy Clerk

N/A Court Reporter / Recorder

N/A Tape No.

Attorneys Present for Plaintiffs: (none)

Attorneys Present for Defendants: (none)

Proceedings: (In Chambers) Order Transferring Action

On July 18, 2008, we ordered Plaintiff Kevin Jackson (“Plaintiff”) to show cause as to why this matter should not be transferred to the Eastern District of California, Sacramento Division. Based on the allegations in the Complaint, it appeared that venue was proper within the Eastern District of California, Sacramento Division, and not the Central District of California. On July 30, 2008, Plaintiff timely filed a response, providing notice of his non-opposition to the transfer of this matter to the Eastern District.

In light of this response, our July 18, 2008 order to show cause is DISCHARGED. This action is hereby TRANSFERRED to the United States District Court for the Eastern District of California, Sacramento Division. The clerk shall effect such transfer forthwith.

IT IS SO ORDERED.

Initials of Deputy Clerk

0

: 00

Bea

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 1

 
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UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 KEVIN JACKSON,

No. 2:08-cv-01954-MCE-JFM

12

Plaintiff,

13

v.

ORDER

14 ALVARO C. TRAQUINA, M.D., Chief Medical Officer/Health
15 Care Manager, of California Sate Prison-Solano of the
16 California Department of Corrections and
17 Rehabilitation, in his individual and official
18 capacities; JASON A. ROHRER, M.D., an individual; XXX
19 HSIEH, M.D.,

20

Defendants.

21

----oo0oo----

22

Plaintiff Kevin Jackson (“Plaintiff”), a California prisoner

23 filed the instant complaint alleging violations of his Eighth

24 Amendment rights under the United States Constitution. Currently

25 before the Court is Defendants’ Motion to Dismiss Plaintiff’s

26 complaint on grounds that Plaintiff failed to exhaust his

27 administrative remedies as required by the Prison Litigation

28 Reform Act (“PLRA”).

1

1 As set forth below, because Defendants failed to introduce

2 evidence adequate to establish that Plaintiff failed to exhaust

3 his administrative remedies, Defendants’ motion must be denied.

4

A motion to dismiss for failure to exhaust administrative

5 remedies prior to filing suit “should be treated as a matter in

6 abatement subject to an unenumerated Rule 12(b) motion.” Wyatt

7 v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). “[F]ailure to

8 exhaust is an affirmative defense under the PLRA, and [] inmates

9 are not required to specially plead or demonstrate exhaustion in

10 their complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007).

11 Therefore, “defendants have the burden of raising and proving the

12 absence of exhaustion.” Wyatt, 315 F.3d at 1119.

13

Here, Defendants’ Motion to Dismiss was supported by two

14 declarations. Defs.’ Mot. to Dismiss; Mem. of P. & A. Each

15 declarant indicates that he or she searched the prison records to

16 determine if Kevin Jackson, CDCR# D-30519, had filed an

17 administrative appeal of the decision in question. Id. at Exs. A

18 & B. Each declarant affirmed that Kevin Jackson, CDCR# D-30519

19 had not filed any such appeal. Id.

20

In response, however, Plaintiff asserts that Defendants in

21 fact searched for the wrong Kevin Jackson. Plaintiff has

22 attached evidence that indicates that his CDCR# is C-73980, not

23 D-30519. Pl.’s Opp’n to Defs.’ Mot. to Dismiss at Ex. A.

24 ///

25 ///

26 ///

27 ///

28 ///

2

1

The evidence offered by the Defendants is accordingly

2 inadequate to establish that Plaintiff failed to exhaust his

3 administrative remedies. Because the burden is on Defendants to

4 raise and prove the absence of exhaustion, Defendants’ Motion to

5 Dismiss is DENIED, without prejudice to renewing said motion upon 6 an adequate evidentiary record.1

7

IT IS SO ORDERED.

8 Dated: March 11, 2009
9

10

_____________________________

11

MORRISON C. ENGLAND, JR.

UNITED STATES DISTRICT JUDGE

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1 Because oral argument will not be of material assistance,

the Court ordered this matter submitted on the briefing. E.D. 28 Local Rule 78-230(h).

3

 
 Case 2:08-cv-01954-KJM-JFM Document 12 Filed 08/26/08 Page 1 of 5

1 EDMUND G. BROWN JR. Attorney General of the State of California
2 DAVID S. CHANEY Chief Assistant Attorney General
3 ROCHELLE C. EAST Senior Assistant Attorney General
4 THOMAS S. PATTERSON Supervising Deputy Attorney General
5 WILLIAM C. KWONG, State Bar No. 168010 Deputy Attorney General
6 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004
7 Telephone: (415) 703-5724 Fax: (415) 703-5843
8 Email: William.Kwong@doj.ca.gov

9 Attorneys for Defendant Dezember

10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE EASTERN DISTRICT OF CALIFORNIA

13

SACRAMENTO DIVISION

14 KEVIN JACKSON, an individual; individually and
15 on behalf of all others similarly situated,

16

Plaintiffs,

17

v.

18 ROBIN DEZEMBER, et al.,

19

Defendants.

No. 08-1954 MCE-JFM

DEFENDANT’S NOTICE OF MOTION AND MOTION THAT THE COURT SCREEN PLAINTIFF’S COMPLAINT UNDER 28 U.S.C. § 1915A

Judge:

The Honorable Morrison C. England

20

21

TO PLAINTIFF AND HIS COUNSEL OF RECORD:

22

PLEASE TAKE NOTICE that Defendant Dezember requests that this Court screen the

23 Complaint under 28 U.S.C. § 1915A.

24 I. Introduction and Procedural Background.

25

Plaintiff is an inmate currently incarcerated at the California State Prison at Solano.

26 (Compl. 1.) He alleges in this putative class action that state prisoners diagnosed with chronic

27 hepatitis C, genotype 1, should be offered a liver biopsy every five years to determine whether

28 further treatment with antiviral drugs is warranted. (Compl. 4.) Plaintiff further alleges that: (1)

Def.’s Not. Mot. & Mot. Ct. Screen Pl.’s Compl.
1

Jackson v. Dezember, et al. No. 2:08-cv-01954-MCE-JFM (PR)

Case 2:08-cv-01954-KJM-JFM Document 12 Filed 08/26/08 Page 2 of 5

1 he was diagnosed with chronic hepatitis C in 2000, (2) his liver biopsy in 2007 revealed Stage II

2 of the disease, and (3) his requests for treatment in accordance with medical recommendations

3 have been refused. (Compl. 5.) Plaintiff also alleges that Defendant Dezember, Director of the

4 Division of Correctional Health Care Services of the California Department of Corrections and

°5 Rehabilitation, maintains a policy and practice of denying treatment for chronic hepatitis C until

6 an inmate's disease is advanced beyond Stage II in violation of his and others' rights under the

.7 Eighth and Fourteenth Amendments to the United States Constitution. (Compl. 7.) Plaintiff's

8 complaint, however, must be dismissed because there is a certified pending class action before

'9 the United States District Court for the Northern District of California involving the same subject

10 matter.

11

Plaintiff initially filed his complaint in the United States District Court for the Central

12 District of California, on July 8, 2008. The complaint was personally served on Defendants on

13 August 6, 2008. On August 19, 2008, this matter was transferred to the Easter District of

14 California, Sacramento Division.

15

II. Defendant Requests that the Court Screen Plaintiff's Complaint Under 28 U.S.C.

16

§ 1915A.

17

Under 28 U.S.C. § 1915A, "[t]he court shall review, before docketing, if feasible, or in any

18 event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner

19 seeks redress from a governmental entity or officer or employee of a governmental entity." Upon

20 such review, the Court shall , identify cognizable claims or dismiss any or all portions of the

21 complaint if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may

22 be granted." 28 U.S.C. § 1915A(b).

23

Thus, Defendant requests that the Court screen Plaintiff's complaint and dismiss it.

24 III. Plaintiff's Complaint Must Be Dismissed Because His Equitable Claim Is Covered

Under an Existing Certified Class Action and Must be Made Through the Court-

25

Appointed Receiver in Plata.

26

Suits for equitable relief from alleged unconstitutional prison conditions cannot be brought

27 where there is an existing class action within the same subject matter. McNiel v. Guthrie, 945

28 F.2d 1163, 1165 (10th Cir. 1991); see also Green v. McKaskle, 770 F.2d 445, 446-47 (5th Cir.

Def.'s Not. Mot. & Mot. Ct. Screen Pl.'s Compl.
2

Jackson v. Dezember, et al. No. 2:08-cv-01954-MCE-JFM (PR)

Case 2:08-cv-01954-KJM-JFM Document 12 Filed 08/26/08 Page 3 of 5

1 1985) (" [T]he individual class member should be barred from pursuing his own individual

2 lawsuit that seeks equitable relief within the subject matter of the class-action."); Muhammed v.

3 Schwarzenegger, No. 06-0739 MEP (PR), 2006 WL 1883347, at *1 (N.D. Cal. July 7, 2006);

4 Coyle v. Cambra, No. 02-1810 SBA(PR), 2005 WL 2397517, at *13 (N.D. Cal. Sept. 27, 2005)

'5 ("[An] action for equitable relief from alleged unconstitutional prison conditions cannot be

6 maintained where there is a pending class-action suit involving the same subject matter.");

7 Jacobson v. Schwarzenegger, 357 F. Supp. 2d 1198, 1209 (C.D. Cal. 2004) (holding that a
8 district court may dismiss an individual plaintiff's action where the plaintiff is a member of a

9 pending class action involving the same claims); Acuna v. Cambra, No. 95-2150 VRW, 1995

'10 WL 607543, at *2 (N.D. Cal. Oct. 6, 1995) ("Individual lawsuits for injunctive and declaratory

11 relief may not be brought if there is a class action pending involving the same subject matter.").

12 The same principle applies to class actions. Goffv. Menke, 672 F.2d 702, 704 (8th Cir. 1982)

13 ("[A] class member should not be able to prosecute a separate equitable action once his or her

14 class has been certified.").

15

This is because "to allow individual suits would interfere with the orderly administration of

16 the class-action and risk inconsistent judgments." Gilispie v. Crawford, 858 F.2d 1101, 1103

17 (5th Cir. 1998); see also Goff, 672 F.2d at 704 ("Two of the primary purposes of Fed. R. Civ. P.

18 23 are avoidance of both duplicative litigation and inconsistent judgments .... Both of these

19 policies are undermined when two suits challenging the same prison conditions are allowed to

20 proceed.") Accordingly, a plaintiff who is a class member may assert any equitable or

21 declaratory claims he has, but must do so by either "urging further action through the class

22 representative . . . or by intervention into the class-action." Gilispe, 858 F.2d at 1103; McNiel,

23 945 F. 2d at 1166; Muhammed, 2006 WL 1883347, at *1; Coyle, 2005 WL 2397517 at *13;

24 Acuna, 1995 WL 607543 at *2. Class members may bring an individual action for equitable

25 relief only if their claims are not being litigated within the boundaries of the class action, or they

26 seek money damages. McNiel, 945 F.2d at 1166 n.4.

27

In this matter, Plaintiff alleges in his complaint that his 2007 liver biopsy revealed Stage II

28 of chronic hepatitis C and his requests for treatment in accordance with certain medical

Def.'s Not. Mot. & Mot. Ct. Screen Pl.'s Compl.
3

Jackson v. Dezember, et al. No. 2:08-cv-01954-MCE-JFM (PR)

Case 2:08-cv-01954-KJM-JFM Document 12 Filed 08/26/08 Page 4 of 5

1 recommendations have been refused. (Compl. 5.) Plaintiff further alleges that Defendant

2 Dezember, Director of the Division of Correctional Health Care Services of the California

3 Depai anent of Corrections and Rehabilitation, maintains a policy and practice of denying

4 treatment for chronic hepatitis C until an inmate's disease is advanced beyond Stage II in

5 violation of his and others' rights under the Eighth and Fourteenth Amendments to the United

6 States Constitution. (Compl. 7.) Plaintiff seeks only injunctive relief ordering Defendant to

.7 cease subjecting Plaintiff and similarly situated individuals to the alleged policies and conditions

8 described in his complaint. (Compl. 9.)

9

These allegations and prayer for relief fall squarely within Plata v. Schwarzenegger, No. C-

10 01-1351 THE (N.D. Cal.), a certified class action pending before the United State District Court

11, for the Northern District of California, San Francisco Division, which concerns medical care for

12 all inmates in California and is now in the remedial phase of litigation. In their Stipulation for

13 Injunctive Relief, the parties in Plata stipulated that the Plata class "consists of all prisoners in

14 the custody of the CDC[R] with serious medical needs, except those incarcerated at Pelican Bay

15 State Prison." (Def.'s Req. Judicial Not., Ex. A: Stipulation Inj. Relief at 5, emphasis added.)

16 Because Plaintiff is a prisoner incarcerated at the California State Prison at Solano and is seeking

17 injunctive relief on behalf of himself and others with respect to his alleged serious medical

18 condition, his claims fall squarely within the ambit of the Plata class action.

19

Furthermore on June 30, 2005, the Court adjudicating the Plata class action ordered a

20 Recievership to take control of the delivery of medical services to all inmates under the custody

21 of the California Department of Corrections and Rehabilitation (CDCR) with the exception of

22 those incarcerated at Pelican Bay State Prison. (Def.'s Req. Judicial Not, Ex. B: Order

23 Appointing Receiver at 1.) In its Order Appointing Receiver, the Court declared that the

24 Receiver shall:

25

exercise all powers vested by the Secretary of the CDCR as they relate to the

administration, control, management, operation, and financing of the

26

California [Department of Corrections and Rehabilitation's] medical health

care system. The Secretary's exercise of the above powers is suspended for

27

the duration of the Receivership .... (Id. at 4.)

28 In his prayer for relief, Plaintiff seeks to enjoin Defendant from further subjecting Plaintiff to the

Def.'s Not. Mot. & Mot. Ct. Screen Pl.'s Compl.
4

Jackson v. Dezember, at al. No. 2:08-cv-01954-MCE-JFM (PR)

Case 2:08-cv-01954-KJM-JFM Document 12 Filed 08/26/08 Page 5 of 5

1 allegedly inadequate medical treatment he has received. (Compl. 9.) Because the health-care

2 system that Defendant nominally supervises is under the control of the federal receiver appointed

in Plata, this action must be dismissed and Plaintiff must bring his claims before the Receiver.

IV. Conclusion

Defendant respectfully requests that this Court screen Plaintiff's complaint under 28 U.S.C.

§ 1915A. Defendant further requests that this Court, upon screening, dismiss this case in its

7 entirety because the injunctive relief sought must be made through the court-appointed receiver.

8

Dated: August 26, 2008

9

Respectfully submitted,

10

EDMUND G. BROWN JR.

Attorney General of the State of California

11

DAVID S. CHANEY

Chief Assistant Attorney General 12
ROCHELLE C. EAST

13

Senior Assistant Attorney General

THOMAS S. PATTERSON

14

Supervising Deputy Attorney General

15

16

17 WILLIAM C. KWONG

18

Deputy Attorney General

Attorneys for Defendant Dezember

19

20
20135794.wpd
21 SA2006303236

22

26 27 28
Def.'s Not. Mot. & Mot. Ct. Screen Pl.'s Compl.
5

Jackson v. Dezember, et al. No. 2:08-cv-01954-MCE-JFM (PR)

 
 Case 2:08-cv-01954-KJM-JFM Document 27 Filed 10/10/08 Page 1 of 9

1 SHAWN KHORRAMI, SBN 180411 (skhorramilalkRalawyers.com) MARK RAVIS, MD, JD, SBN 137479 (mravis@kpalawyers.com)
2 KAREN TRAVIS, SBN 128162 (ktravis@kpalawyers.com) KHORRAMI POLLARD & ABIR LLP
3 444 S. Flower St., Thirty-Third Floor 4 Los Angeles, California 90071
Telephone: (213) 596-6000 5 Facsllnile: (213) 569-6010

6

7

8
UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11
12 KEVIN JACKSON, an individual,

Case No:2:08-cv-01954-MCE-JFM

13

Plaintiff,

FIRST AMENDED COMPLAINT

FOR DAMAGES FOR CRUEL

14

v.

AND UNUSUAL PUNISHMENT

BASED ON DENIAL OF MEDICAL

15 ALVARO C. TRAQUINA, M.D., Chief CARE IN VIOLATION OF THE

Medical Officer/Health Care Manager, EIGHTH AMENDMENT TO THE

16 of California State Prison-Solano of the UNITED STATES CONSTITUION

17 California Department of Corrections

and Rehabilitation, in his individual and [DEMAND FOR JURY TRIAL]

18 official capacities; JASON A.

ROHRER, M.D., an individual; XXX

19 HSIEH, M.D., and DOES 1-10,

20
Defendants.
21

22

23

24

25

26

27

28

FIRST AMENDED COMPLAINT

Case 2:08-cv-01954-KJM-JFM Document 27 Filed 10/10/08 Page 2 of 9

1

Plaintiff KEVIN JACKSON hereby brings this First Amended Complaint

2 for violation of civil rights pursuant to 42 USC Section 1983 against the named

3 Defendants, who are employees of the California Department of Corrections and

4 Rehabilitation ("CDCR"), a public entity, and DOE Defendants I through 10,

5 inclusive, who are also believed to be employees or agents of the CDCR or other

6 departments of the State of California, and alleges as follows:

7

8

JURISDICTION AND VENUE

9

1. This action arises under the United States Constitution and the Civil

10 Rights Act pursuant to 42 U.S.C § 1983 and the Eighth and Fourteenth

11 Amendments to the United States Constitution, wherein Plaintiff seeks to redress

12 deprivations by Defendant, and Unknown Named Defendants 1 through 10.

13 Jurisdiction of this Court is invoked under 28 U.S.C. §§ 1331, and 1343 and the

14 aforementioned statutory and constitutional provisions. Plaintiff further invokes

15 the supplemental jurisdiction of this Court to hear and decide claims arising under

16 state law.

17

2. At all times mentioned herein, all defendants were acting under color

18 of state law, or rights secured to plaintiff by the Eighth and Fourteenth

19 Amendments to the United States Constitution and the laws of the United States.

20 This court has supplemental jurisdiction over those claims asserted under state law

21 by virtue of28 U.S.C. Section 1367.

22

3. Venue is founded in this judicial district upon 28 U.S.C § 1391 as the

23 acts complained of arose in this district.

24

25

THE PARTIES

26

4. Plaintiff KEVIN JACKSON is an inmate of the California State

27 Prison at Solano ("CSP Solano"). Plaintiff is infected with the hepatitis C virus

28 ("HCV") and had not received treatment for this serious medical condition from

2 FIRST AMENDED COMPLAINT

Case 2:08-cv-01954-KJM-JFM Document 27 Filed 10/10/08 Page 3 of 9

1 Defendants until the filing of his original complaint in August 2008.

2

5. Defendant ALVARO C. TRAQUINA, M.D is the Chief Medical

3 Officer/Health Care Manager for the California State Prison at Solano. He is an

4 employee ofthe State of California. He is alleged to have been acting, at all times

5 relevant to this case, in both his individual and official capacities and under the

6 color of state law within the meaning of 42 USC § 1983.

7

6. Defendant JASON A. ROHRER, M.D. was, at all times relevant to

8 this action, a physician employed by or contracted with the State of California for

9 the Solano State Prison, working out of the prison's Primary Clinic. He is alleged

10 to have been acting, at all times relevant to this case, in his individual capacity and

11 under color of state law within the meaning of 42 USC § 1983.

12

7. Defendant XXX Hsieh, M.D. was, at all times relevant to this action,

13 a physician employed by or contracted with the State of California for the Solano

14 State Prison. He is alleged to have been acting, at all times relevant to this case, in

15 his individual capacity and under color of state law within the meaning of 42 USC

16 § 1983.

17

8. DOE DEFENDANTS 1 TO 10 are employees of the state of

18 California. Their identities are presently unknown. The Complaint will be

19 amended to identify them by name when their identities are discovered.

20

21

STATEMENT OF FACTS

22

9. Hepatitis C virus is one of the most important causes of chronic liver

23 disease in the United States. It is an RNA virus. While it accounts for 15 percent

24 of acute viral hepatitis, it is responsible for nearly 70 percent of chronic hepatitis,

25 and up to 50 percent of cirrhosis, end-stage liver disease, and liver cancer in the

26 United States. The hepatitis C virus mutates rapidly and changes the protein

27 composition of the protein envelope which surrounds it. This allows it to evade the

28 immune system and, for this reason, it has been difficult to develop a vaccine to

3
FIRST AMENDED COMPLAINT

Case 2:08-cv-01954-KJM-JFM Document 27 Filed 10/10/08 Page 4 of 9

1 hepatitis C. Genotypes la and Ib are the most common in the United States (75

2 percent of cases).

3

10. Hepatitis C transmission occurs primarily through exposure to

4 infected blood. Approximately 75 percent of California inmates with hepatitis C

5 would be expected to have chronic hepatitis C infection (15 to 25 percent

6 spontaneously clear the virus). Persons aged 40 to 59 years have the highest

7 prevalence ofHCV infection, and in this age group, the prevalence is highest in

8 African Americans (6.1 percent). African American men are the group least likely

9 to spontaneously clear the virus.

10

II. The biggest threat from hepatitis C infection is that the acute disease

11 fails to resolve in most instances and the disease advances to chronic hepatitis C.

12 The most common sequelae of chronic HCV infection are progressive liver fibrosis

13 leading to cirrhosis, end-stage liver disease and hepatocellular carcinoma.

14 Treatment is most effective when the degree of fibrosis is minimal.

15

12. HCV infection is diagnosed by blood tests. These tests detect

16 antibodies that the body makes to the hepatitis C virus. If the patient is determined

17 to have detectable virus in his blood over a period of months, he is considered to

18 have chronic hepatitis C. The standard of care for treatment in the United States

19 has been set forth by the National Institutes of Health.

20

13. If the patient is infected with genotype I, then he should be offered a

21 liver biopsy. It is used to determine the amount of scarring (fibrosis) present in the

22 liver and this information is critical to deciding on whether to treat with the

23 antiviral drugs.

24

14. Virtually all experts recommend treatment for patients with Stage II

25 disease, as determined by liver biopsy. However, the California Department of 26 Corrections and Rehabilitation and their employees, including defendants herein, 27 have refused to treat patients with Stage II disease. Until recently, Defendants 28 have customarily required a more advanced stage of liver damage before offering

4
FIRST AMENDED COMPLAINT

Case 2:08-cv-01954-KJM-JFM Document 27 Filed 10/10/08 Page 5 of 9

1 treatment to inmates and thus allowed inmates' disease to advance, which caused

2 more liver injury, and made treatment less likely to succeed.

3

15. Plaintiff KEVIN JACKSON, at all relevant times, was and is

4 currently incarcerated at the California State Prison at Solano.

5

16. Plaintiff is a 52-year old African American who was diagnosed with a

6 serious medical condition, chronic Hepatitis C infection, in 2000. He is infected

7 with genotype la. He had a liver biopsy in 2000 which was normal. Despite his

8 requests, Plaintiff did not have a repeat liver biopsy until August 27, 2007, even

9 though the standard of care is to repeat the biopsy every five years.

10

17. On October 18, 2006, Plaintiff was seen by a gastroenterologist at UC

11 Davis who advised Defendant Rohrer, Plaintiff's treating physician, that the liver

12 biopsy needed to be repeated and that liver biopsies are done every five years.

13

18. It took an additional ten (10) months for the liver biopsy to be

14 repeated. Plaintiff had a liver biopsy performed at the Sutter Solano Medical

15 Center on August 27, 2007. The biopsy revealed Stage II disease.

16

19. Plaintiff has repeatedly requested treatment for his chronic Stage II

17 hepatitis C infection. He has been refused treatment. He has exhausted his

18 administrative appeals and only very recently, since filing his original lawsuit in

19 August 2008, did he begin to receive treatment for his Hepatitis C infection.

20

21

FIRST CAUSE OF ACTION

22

VIOLATION OF CIVIL RIGHTS [42 U.S.c. §1983]

23

EIGHTH AMENDMENT

24

(By Plaintiff Against All Defendants)

25

26

20. Plaintiff hereby incorporates and realleges paragraphs 1 through 19 0

27 this Complaint as though fully set forth hereat.

28

21. The standard of care, as set forth by the National Institutes of Health,

5
FIRST AMENDED COMPLAINT

Case 2:08-cv-01954-KJM-JFM Document 27 Filed 10/10/08 Page 6 of 9

1 the Center for Disease Control in Atlanta, and by civilian practice in California is

2 to treat patients with Hepatitis C when it reaches Stage II. Based thereon, Plaintiff

3 alleges that he has had a serious medical condition for which he was entitled to

4 treatment at least as of August 2007 when a liver biopsy revealed that his Hepatitis

5 C was at Stage 2, Grade 2.

6

22. As alleged herein and above, Defendant maintained a policy and

7 practice of denying combination therapy unless and until an inmate's disease

8 advanced beyond Stage II. Based on this policy, Plaintiff was irreparably harmed,

9 as failure to provide combination therapy leads to further injury due to

10 advancement of the disease. This denial of diagnostic evaluations (liver biopsies)

11 and treatment constitutes deliberate indifference as set forth in Estelle v. Gamble,

12 429 U.S. 97 (1976). Defendant's policies to delay and to deny care have been

13 intentionally promulgated and executed for financial reasons in complete disregard

14 for the medical needs of Plaintiff, an inmate with HCY infection. The policy was

15 not promulgated on the basis of legitimate differences in medical opinion but

16 solely on the basis of cost considerations and in disregard of the serious medical

17 needs of inmates.

18

23. Defendants were, at all relevant times, employed by the State of

19 California and acted under color of law to deprive Plaintiff constitutionally

20 protected rights including, but not limited to, the right to be free of cruel and

21 unusual punishment, guaranteed by the Eighth Amendment to the United States

22 Constitution, made applicable to the states through the Fourteenth Amendment.

23

24. As alleged herein and above, Defendants' failure to treat Plaintiff for

24 his Hepatitis C constitutes a violation of Plaintiff's Eighth Amendment rights

25 because Defendants denied and delayed treatment with deliberate indifference to

26 Plaintiff's serious medical needs.

27

25. At all times relevant Defendants acted under color of law to delay and

28 deny Plaintiff proper medical care for his Hepatitis C. Defendants knew or should

6
FIRST AMENDED COMPLAINT

Case 2:08-cv-01954-KJM-JFM Document 27 Filed 10/10/08 Page 7 of 9

1 have known that Plaintiff had Hepatitis C. As a result, Defendants knew or should

2 have known that denying and delaying a treatment was an excessive risk to

3 Plaintiff's health. Defendants consciously disregarded this risk in violation of

4 Plaintiff's Eighth Amendment rights. Defendants' failure to provide treatment for

5 Plaintiff's Hepatitis C was not based on legitimate differences in medical opinion

6 but on deliberate indifference and conscious disregard for Plaintiff's serious

7 medical needs.

8

26. Defendant Traquina, at all times relevant to this case, acted in his

9 individual capacity and under the color of state law, with deliberate indifference to

10 Plaintiff's serious medical needs by failing to approve treatment for Plaintiff for

11 Hepatitis C. Defendant Traquina knew that denying and delaying Hepatitis C

12 treatment was an excessive risk to Plaintiff's health. Defendant consciously

13 disregarded this risk by repeatedly failing to approve a repeat liver biopsy until

14 2007, and failing to approve treatment with combination drug therapy in violation

15 of Plaintiff's Eighth Amendment rights.

16

27. Defendant Rohrer, at all times relevant to this case, acted in his

17 individual capacity and under the color of state law, with deliberate indifference to

18 Plaintiff's serious medical needs by failing to treat Plaintiff for Hepatitis C.

19 Defendant Rohrer knew that denying and delaying Hepatitis C treatment was an

20 excessive risk to Plaintiffs health. Defendant consciously disregarded this risk by

21 repeatedly failing to perform a liver biopsy and by failing to treat Plaintiff with

22 combination drug therapy in violation of Plaintiff's Eighth Amendment rights.

23

28. Defendant Hsieh, at all times relevant to this case, acted in his

24 individual capacity and under the color of state law, with deliberate indifference to

25 Plaintiff's serious medical needs by failing to treat Plaintiff for Hepatitis C.

26 Defendant Hsieh knew that denying and delaying Hepatitis C treatment was an

27 excessive risk to Plaintiffs health. Defendant consciously disregarded this risk by

28 repeatedly failing to perform a liver biopsy and by failing to treat Plaintiff with

7
FIRST AMENDED COMPLAINT

Case 2:08-cv-01954-KJM-JFM Document 27 Filed 10/10/08 Page 8 of 9

1 combination drug therapy in violation of Plaintiffs Eighth Amendment rights.

2

3

29. As a result in delay in obtaining a second liver biopsy and delay in

4 treating his Hepatitis C infection, Plaintiff's liver damage increased and now he is

5 less likely to respond to treatment. Further, because of these delays, Plaintiffs

6 treatment is more difficult and he is at increased risk of developing cirrhosis, liver

7 failure, and hepatocellular carcinoma. Additionally, there is a substantial risk that

8 Plaintiffwill suffer further unnecessary and wanton infliction of pain and suffering

9 as a result of likely complications associated with hepatitis C.

10

11

30. Defendant's policy and practice to fail and refuse to treat inmates

12 infected with hepatitis C at Stage II, was and is in deliberate indifference to

13 Plaintiffs constitutional rights and violates the prohibition against cruel and

14 unusual punishment under the Eighth Amendment to the United States

15 Constitution.

16

17

31. At all relevant times, Defendants, in failing to treat Stage II hepatitis C,

18 have acted under color of State law to deprive Plaintiff of his constitutionally

19 protected rights including, but not limited to, the right to be free of cruel and

20 unusual punishment, guaranteed by the Eighth Amendment to the United States

21 Constitution.

22

23

PRAYER FOR RELIEF

24

25

WHEREFORE, Plaintiff prays for judgment against Defendants as follows:

26

27

28

8
FIRST AMENDED COMPLAINT

Case 2:08-cv-01954-KJM-JFM Document 27 Filed 10/10/08 Page 9 of 9

1

l. For general damages in an amount to be determined at trial;

2

2. For attorneys' fees pursuant to 42 U.S.C. §1988;

3

3. For costs of suit herein;

4

4. For such other and further relief as the Court may deem proper.

5
6 Dated: October 1,2008

KHORRAMI POLLARD & ABIR LLP

7

8

BY:~~

9

MARK RAvlSMDJ).

KAREN TRAVIS, E'SQ.

10

Attorneys for Plaintiffs

11 III
12
III
13
14 III

15
III
16
17 III

18 III
19
III
20
21 III

22
III
23
24 III

25 III
26
III
27

28 III

9
FIRST AMENDED COMPLAINT

 
 1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 KEVIN JACKSON,
12
13 v.
14

Case No. 2:08-cv-01954 MCE JFM Plaintiff, ORDER

15 ROBIN DEZEMBER, et al.,

16

Defendants.

17

18

Good cause appearing, Defendants’ request extension of time to file a joint status report in

19 this matter is granted. The joint status report is now due on June 11, 2009.

20 DATED: June 2, 2009
21
22
23
.
24

__________________________________ MORRISON C. ENGLAND, JR UNITED STATES DISTRICT JUDGE

25

26

27

28
1
PDF created with pdfFactory trial version www.pdffactory.com

[Proposed] Order (2:08-cv-01954 MCE JFM)

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 KEVIN JACKSON,

12

Plaintiff,

No. 2:08-cv-01954-MCE-JFM

13

v.

MEMORANDUM AND ORDER

14 ALVARO TRAQUINA, M.D., Chief Medical Officer/Health
15 Care Manager of California state Prison-Solano of the
16 California Department of Corrections and
17 Rehabilitation, in his individual and official
18 capacities; JASON A. ROHRER, M.D., an individual; XXX
19 HSIEH, M.D., and DOES 1-10,

20

Defendants.

21

----oo0oo----

22

Through the present action, Plaintiff Kevin Jackson

23 (“Plaintiff”) seeks redress for alleged violations, while

24 incarcerated within the State of California’s prison system, of

25 his Eighth Amendment rights under the United States Constitution.

26 Defendants include the Medical Director and two physicians

27 working at the California State Prison-Solano, where Plaintiff

28 was incarcerated.

1

1 Presently before the Court is Defendants’ Motion to Dismiss

2 Plaintiff’s complaint on grounds that he failed to exhaust his

3 administrative remedies before bringing suit, as required by the

4 Prison Reform Litigation Act (“PLRA”). For the reasons set forth 5 below, Defendants’ Motion will be denied.1

6

7

BACKGROUND

8

9

Plaintiff’s initial complaint, filed July 8, 2008, sought

10 injunctive relief on a class-wide basis for California inmates

11 infected with hepatitis C who were denied liver biopsies and

12 combination drug therapy for Stage II liver disease. Plaintiff, who

13 was diagnosed with a chronic hepatitis C infection in 2000, alleged

14 that treatment delays violated class members’ rights to adequate

15 medical care under the Eighth Amendment to the United States

16 Constitution. The only named Defendant initially named within the

17 specifically denominated “class action case” was Robin Dezember,

18 in her capacity as Director of Correctional Health Care Services

19 for the California Department of Corrections and Rehabilitation.

20

Plaintiff ultimately abandoned his class action complaint

21 after the Court issued an Order to Show Cause as to why the

22 action should not be transferred to the Northern District of

23 California for joinder with the ongoing class action litigation

24 in Plata v. Schwarzenegger, No. 3-01-1351, which already

25 challenged California’s prison health care system.

26

27

1 Because oral argument will not be of material assistance,

the Court ordered this matter submitted on the briefs. E.D. Cal. 28 Local Rule 78-230(h).

2

1 Because Plaintiff’s response specifically requested leave to file

2 an amended complaint on his own behalf, however, the Court

3 granted Plaintiff leave to amend for that purpose by its Minute

4 Order filed September 30, 2008.

5

Plaintiff’s Amended Complaint, filed on October 10, 2008 in

6 accordance with the September 30 Order, sought damages only on

7 his own behalf and was instituted, not against Ms. Dezember on a

8 statewide basis, but rather only against doctors responsible for

9 patient care at California State Prison-Solano, where Plaintiff

10 was housed. Rather than seeking injunctive relief, Plaintiff

11 seeks damages on his own behalf for alleged exacerbation of liver

12 damage occasioned by Defendants’ delays in providing treatment.

13

Defendants claim that Plaintiff failed to exhaust his

14 administrative remedies because his internal grievance

15 complaining of inadequate treatment was not concluded until

16 August 13, 2008, at the earliest, when his appeal was partially

17 granted, with hepatitis C treatment scheduled to begin after

18 contemplated knee surgery. Because that date was after Plaintiff

19 instituted his class action proceedings on July 8, 2008,

20 Defendants allege that his administrative remedies were not

21 exhausted prior to the institution of suit. The present Motion

22 to Dismiss for failure to exhaust is predicated on that alleged

23 shortcoming. Plaintiff, on the other hand, contends that because

24 he was allowed to file what amounted to a new complaint on his

25 own behalf against new defendants, the date that amended pleading

26 was filed (October 10, 2008) should control.

27 ///

28 ///

3

1 According to Plaintiff, because his individual complaint was

2 filed after the administrative grievance had concluded, no

3 exhaustion issue is present.

4

5

STANDARD

6

7

A motion to dismiss for failure to exhaust administrative

8 remedies prior to filing suit “should be treated as a matter in 9 abatement subject to an unenumerated Rule 12(b) motion.”2 Wyatt

10 v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). “[D]efendants

11 have the burden of raising and proving the absence of

12 exhaustion.” Id. at 1119.

13

“In deciding a motion to dismiss for a failure to exhaust

14 nonjudicial remedies, the court may look beyond the pleadings and

15 decide disputed issues of fact.” Id. at 1120. If the district

16 court concludes that the prisoner has failed to exhaust his non-

17 judicial remedies, the proper remedy is dismissal of the claim

18 without prejudice. Id.

19

20

ANALYSIS

21

22

The PRLA provides that “[n]o action shall be brought with

23 respect to prison conditions under section 1983 of this title,

24 until such administrative remedies as are available are

25 exhausted.” 42 U.S.C. §1997e(a).

26 ///

27
2 All further references to “Rule” or “Rules” are to the 28 Federal Rules of Civil Procedure unless otherwise noted.

4

1 California prison regulations provide administrative procedures

2 in the form of one informal and three formal levels of review to

3 address the plaintiff’s claims. See Cal. Code Regs. tit. 15,

4 §§ 3084.1-3084.7.

5

Administrative procedures generally are exhausted once a

6 prisoner has received a “Director’s Level Decision,” or third

7 level review, with respect to his issue or claims. Cal. Code

8 Regs. tit. 15 § 3084.5. All steps must be completed before a

9 civil rights action is filed, unless a plaintiff demonstrates a

10 step is unavailable to him; exhaustion during the pendency of the

11 litigation will not save an action from dismissal. McKinney v.

12 Carey, 311 F.3d 1198, 1200 (9th Cir. 2002).

13

In the present matter, Plaintiff’s administrative appeal was

14 partially granted. Plaintiff correctly points out that having

15 prevailed on the grievance at his first level appeal, there was

16 no reason why he had to appeal to the next level for exhaustion

17 purposes. The California regulations governing appeal and

18 disposition of prisoner appeals make this clear. See Cal. Code

19 Regs., tit. 15, § 3084.5(c) (“Second formal level. Second level

20 is for review of appeals denied at first level.”). Consequently 21 this Court finds that exhaustion did occur.3

22 ///

23

24

3 While Defendants also appear, at least in part, to

predicate their exhaustion argument on a contention that 25 Plaintiff should have filed his initial administrative appeal

earlier, at the point when he allegedly learned that liver 26 biopsies should be performed every five years, the Court rejects

that argument, which leaves unanswered the underlying question of 27 when Plaintiff should have known that he had serious liver

disease warranting further treatment, as opposed to additional 28 testing.

5

1

The next step in the analysis is to determine whether the

2 timing of Plaintiff’s exhaustion properly comported with his

3 commencement of suit in this matter. As indicated above, 42

4 U.S.C. § 1997e(a) provides that no action can be brought on

5 behalf of a prisoner with respect to prison conditions until

6 available administrative remedies have been exhausted. This

7 prerequisite has been interpreted as requiring exhaustion prior

8 to the filing of suit. McKinney v. Carey, 311 F.3d 1198,1200

9 (9th Cir. 2002). Because Plaintiff’s class action was filed on

10 July 8, 2008, and since Plaintiffs’ first level appeal was not

11 resolved until October 13, 2008, Defendants claim that the

12 instant case is premature and must be dismissed under Rule 12(b).

13

The Court concludes that Defendants’ argument is misplaced

14 given the particular circumstances of this case. Plaintiff’s

15 initial complaint, filed before he exhausted his own

16 administrative remedies, was a class action proceeding seeking

17 injunctive and declaratory relief, only. The entire character of

18 the action changed when, on September 26, 2008, Plaintiff

19 withdrew his request for class action injunctive relief and

20 instead sought to amend his complaint to seek redress for the

21 damages he personally sustained as a result of treatment delays.

22 The Court, by Minute Order dated September 30, 2008, permitted

23 Plaintiff to so amend, and the resulting amended complaint

24 contained both new defendants and a new theory of relief

25 (monetary damages) absent from the initially filed complaint.

26 For all intents and purposes, the amended complaint was an

27 entirely new proceeding.

28 ///

6

1 Rather than require him to file a completely new case, however,

2 it was this Court’s decision to permit Plaintiff to proceed on an

3 amended pleading. Given the fact that Plaintiff’s personal

4 administrative remedies were exhausted on or about August 13,

5 2008, almost two months before Plaintiff’s amended pleading was

6 filed, it would elevate form over substance given the facts

7 present here to now dismiss Plaintiff’s amended pleading as

8 premature.

9

10

CONCLUSION

11

12

For the foregoing reasons, Defendants’ Motion to Dismiss

13 (Docket No. 39) is DENIED. The parties shall file a Joint Status

14 Report not later than twenty (20) calendar days after this Order

15 is filed electronically.

16

IT IS SO ORDERED.

17 Dated: October 2, 2009
18

19

_____________________________

20

MORRISON C. ENGLAND, JR.

UNITED STATES DISTRICT JUDGE

21

22

23

24

25

26

27

28

7

 
 Case 2:08-cv-01954-KJM-JFM Document 31 Filed 11/20/08 Page 1 of 6

1 EDMUND G. BROWN JR. Attorney General of the State of California
2 DAVID S. CHANEY Chief Assistant Attorney General
3 ROCHELLE C. EAST Senior Assistant Attorney General
4 TRACY S. HENDRICKSON Deputy Attorney General
5 CHRISTOPHER J. BECKER, State Bar No. 230529 Deputy Attorney General
6 1300 I Street, Suite 125 P.O. Box 944255
7 Sacramento, CA 94244-2550 Telephone: (916) 322-2201
8 Fax: (916) 324-5205 Email: Christopher.Becker@doj.ca.gov
9

10 Attorneys for Defendants Hsieh, Rohrer, and Traquina

11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE EASTERN DISTRICT OF CALIFORNIA

14

SACRAMENTO DIVISION

15

16 KEVIN JACKSON,

17

18

v.

Plaintiff,

Case No. 2:08-cv-01954 MCE JFM
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES

19 ROBIN DEZEMBER, et al.,

Hearing Date: February 6, 2009

Time: 9:00 a.m.

20

Defendants. Courtroom: 7

Judge: Honorable Morrison C. England

21

22

TO PLAINTIFF AND HIS ATTORNEY OF RECORD:

23

PLEASE TAKE NOTICE THAT under Rule 12(b) of the Federal Rules of Civil

24 Procedure, and Local Rule 78-230(b), on February 6, 2009, at 9:00 a.m., in Courtroom 7 of this

25 Court located at 501 I Street, Sacramento, California, Defendants Hsieh, Rohrer, and Traquina

26 will move to dismiss this action on the basis that Plaintiff did not exhaust his administrative

27 remedies prior to filing this lawsuit.

28 ///

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES
1

Case 2:08-cv-01954-KJM-JFM Document 31 Filed 11/20/08 Page 2 of 6

1

This motion is based upon this notice of motion and motion, the attached memorandum of

2 points and authorities, and the records and pleadings in this action.

3

Dated: November 20, 2008

Respectfully submitted,

4

EDMUND G. BROWN JR.

5

Attorney General of the State of California

6

DAVID S. CHANEY Chief Assistant Attorney General

7

ROCHELLE C. EAST

Senior Assistant Attorney General

8

KENNETH R. WILLIAMS

9

Supervising Deputy Attorney General

10

/s/ Christopher J. Becker

11

CHRISTOPHER J. BECKER

Deputy Attorney General

12

Attorneys for Defendant

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES
2

Case 2:08-cv-01954-KJM-JFM Document 31 Filed 11/20/08 Page 3 of 6

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

INTRODUCTION

3

This case must be dismissed because Plaintiff failed to exhaust his administrative remedies

4 before filing this lawsuit.

5

SUMMARY OF FACTS

6

Plaintiff alleges that while housed at California State Prison Solano (CSP Solano), he was

7 diagnosed with Hepatitis C. (Am. Compl. p. 5). Plaintiff claims that he had a liver biopsy in

8 2000, which was normal. (Am. Compl. p. 5). According to Plaintiff, he should have been given

9 another liver biopsy within five years. (Am. Compl. p. 5). However, Plaintiff did not receive a

10 second liver biopsy until August 27, 2007. (Am. Compl. p. 5). Plaintiff avers that the second

11 biopsy revealed that Plaintiff had stage II Hepatitis C. (Am. Compl. p. 5).

12

Plaintiff contends that Defendants are responsible for the delay in his second biopsy and

13 that the undue delay has caused him irreparable harm and unnecessary advancement of his

14 disease. (Am. Compl. p. 6). Plaintiff also claims that Defendants refused to treat him for stage

15 II Hepatitis C because of cost concerns. (Am. Compl. p. 6).

16

Plaintiff claims that he exhausted his administrative remedies. (Am. Compl. p. 5).

17 However, Plaintiff never pursued any inmate grievances at CSP Solano from the year 2000

18 through November 2008, concerning any claims of inadequate medical treatment for his

19 Hepatitis C condition. (See Exhibit A, Declaration of S. Cervantes, 2: 8-13). Furthermore,

20 Plaintiff never pursued an inmate appeal to the third-level of review concerning claims of

21 inadequate medical treatment for Hepatitis C at CSP Solano. (See Exhibit B, Declaration of N.

22 Grannis, “Grannis Decl.” 2: 1-6).

23 ///

24 ///

25 ///

26 ///

27 ///

28 ///

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES
3

Case 2:08-cv-01954-KJM-JFM Document 31 Filed 11/20/08 Page 4 of 6

1

ARGUMENT

2

I.

3

PLAINTIFF’S SUIT AGAINST DEFENDANTS MUST BE DISMISSED

BECAUSE PLAINTIFF FAILED TO EXHAUST HIS ADMINISTRATIVE

4

REMEDIES.

5

A. Applicable Legal Standard for an Unenumerated 12(b) Motion

6

Although Federal Rule of Civil Procedure 12 does not explicitly address exhaustion, the

7 Ninth Circuit has held that the failure to exhaust nonjudicial remedies "should be treated as a

8 matter in abatement subject to an unenumerated Rule 12(b) motion." Wyatt v. Terhune, 9 315 F.3d 1108, 1119 (9th Cir. 2003). Authority for the "unenumerated" 12(b) motion derives

10 from this Court's inherent power to regulate actions, including authorizing motions not explicitly

11 recognized by the rules. Ritza v. Int'l Longshoremen's and Warehousemen's Union, 12 837 F.2d 365, 369 (9th Cir. 1988). "In deciding a motion to dismiss for failure to exhaust

13 nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of

14 fact." Wyatt, 315 F.3d at 1119-20. Because no presumption of truthfulness attaches to plaintiff's

15 allegations in such matters, the court may resolve any disputed material facts before proceeding

16 further. Ritza, 837 F.2d at 368-69. If the court concludes that the prisoner has not exhausted

17 nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice. Wyatt, 315

18 F.3d at 1120.

19

B. Plaintiff’s Claims Against Defendants Should Be Dismissed Because

He Failed To Exhaust His Administrative Remedies Prior to Bringing

20

this Action As Required By the Prison Litigation Reform Act

21

The plain language of 42 U.S.C. § 1997e(a) mandates exhaustion of administrative

22 remedies prior to filing the complaint in federal court. McKinney v. Carey, 311 F.3d 1198, 1199

23 (9th Cir. 2002) (emphasis added). The Prison Litigation Reform Act ("PLRA") amended

24 42 U.S.C. § 1997e to require exhaustion of administrative remedies under all circumstances in

25 ///

26 ///

27 ///

28 ///

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES
4

Case 2:08-cv-01954-KJM-JFM Document 31 Filed 11/20/08 Page 5 of 6

1 § 1983 actions brought by prisoners:

2

No action shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a prisoner

3

confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.

4

5 42 U.S.C. § 1997e.

6

In Booth v. Churner, 532 U.S. 731 (2001), the Supreme Court held that this amendment

7 "eliminated both the discretion to dispense with administrative exhaustion and the condition that

8 the appeals process be ‘plain, speedy and effective’ before exhaustion could be required."

9 Moreover, the Booth Court held that Congress "mandated exhaustion clearly enough, regardless

10 of the relief offered through administrative procedures." Id. at 741. Exhaustion of

11 administrative remedies is a prerequisite to suit. Porter v. Nussle, 534 U.S. 516, 524 (2002).

12 Further, an inmate is required to provide sufficient information so as to put prison officials on

13 notice as to the facts at issue in his claim. See Id. at 531.

14

The State of California provides its prisoners and parolees the right to administratively

15 appeal “any departmental decision, action, condition or policy perceived by those individuals as

16 adversely affecting their welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust

17 available administrative remedies, a prisoner must proceed through an initial informal level, and

18 three formal levels of review, culminating in a Director’s Level Decision. Id. at § 3084.5;

19 Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal.1997). A final decision at the Director’s

20 level satisfies the exhaustion requirement under § 1997e(a). Id. at 1237-38.

21

Recently, the Supreme Court held that proper exhaustion of administrative remedies is

22 necessary to satisfy the Prison Litigation Reform Act's exhaustion requirement. Woodford v.

23 Ngo, 126 S.Ct. 2378, 2385-2388. Proper exhaustion demands compliance with an agency's

24 deadlines and other critical procedural rules because no adjudicative system can function

25 effectively without imposing some orderly structure on the course of its proceedings. Id. When

26 a grievance is filed shortly after the event giving rise to the grievance, witnesses can be

27 identified and questioned while memories are still fresh, and evidence can be gathered and

28 preserved. Id. The benefits of exhaustion can be realized only if the prison grievance system is

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES
5

Case 2:08-cv-01954-KJM-JFM Document 31 Filed 11/20/08 Page 6 of 6

1 given a fair opportunity to consider the grievance. Id. The prison grievance system will not

2 have such an opportunity unless the grievant complies with the system's critical procedural rules.

3 Id. Importantly, the Supreme Court recognized that the PLRA provided a sanction for a prisoner

4 who did not comply with a prison’s procedure, to wit: no judicial relief. Id.

5

Here, Plaintiff never even attempted to exhaust his administrative remedies regarding the

6 claims set forth in his complaint. Plaintiff’s failure to pursue an appeal at any level deprived

7 CSP Solano and the California Department of Corrections and Rehabilitation (CDCR) of the

8 opportunity to address his concerns before having to incur the expense of defending this lawsuit.

9 For these reasons, Defendants request that Plaintiff’s complaint be dismissed for failure to

10 exhaust his administrative remedies.

11

CONCLUSION

12

Plaintiff failed to exhaust his administrative remedies against Defendants, therefore,

13 Plaintiff’s lawsuit must be dismissed.

14

Dated: November 20, 2008

15

Respectfully submitted,

16

EDMUND G. BROWN JR.

Attorney General of the State of California

17

DAVID S. CHANEY

Chief Assistant Attorney General 18
ROCHELLE C. EAST

19

Senior Assistant Attorney General

TRACY S. HENDRICKSON

20

Deputy Attorney General

21
/s/ Christopher J. Becker

22 CHRISTOPHER J. BECKER

23

Deputy Attorney General

Attorneys for Defendants

24

25
30588593.wpd
26 SF2008200543

27

28

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES
6

 
 Case 2:08-cv-01954-KJM-JFM Document 24 Filed 09/19/08 Page 1 of 7

EDMUND G. BROWN JR.
Attorney General of the State of California 2 DAVID S. CHANEY
Chief Assistant Attorney General 3 ROCHELLE C. EAST
Senior Assistant Attorney General 4 THOMAS S. PATTERSON
Supervising Deputy Attorney General 5 WILLIAM C. KWONG, State BarNo. 168010
Deputy Attorney General 6 455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004 7 Telephone: (415) 703-5724
Fax: (415) 703-5843 8 Email: William.Kwong@doj.ca.gov

9 Attorneys for Defendant Dezember

10

II

IN THE UNlTED STATES DISTRICT COURT

12

FOR THE EASTERN DISTRICT OF CALIFORNIA

13

SACRAMENTO DIVISION

14 KEVIN JACKSON, an individual; individnally and
15 00 behalf of all others similarly situated,

16

Plaintiffs,

17

v.

18 ROBIN DEZEMBER, et al.,

No. 08-1954 MCE-JFM
DEFENDANT DEZEMBER'S RESPONSE TO ORDER TO SHOW CAUSE
Judge: The Honorable Morrison C. England

19

Defendants.

20

21 I. Introduction.

22

Defendant Dezember submits this response to the Court's September 4, 2008 minute order

23 to the parties to show cause why this case should not be transferred to the Northern District of

24 California to be joined with the class action case of Plata v. Schwarzenegger, No. C-01-1351

25 TEH (N.D. Cal.). As discussed below, this case should not be joined with Plata. Instead, the

26 case must be dismissed because the suit should not have been filed given that there is a certified

27 pending class action before the United States District Court for the Northern District of

28 California involving the same defendant and subject matter.

Def.'s Resp. Ord. Show Cause

Jackson v. Dezember. et 0.1. No. 2:08-cv·OI954·MCE-JFM (PR)
1

Case 2:08-cv-01954-KJM-JFM Document 24 Filed 09/19/08 Page 2 of 7

II. Background.

2

Plaintiff is an inmate currently incarcerated at the California State Prison at Solano. (Am.

3 Comp!. 1.) He alleges in this putative class action that state prisoners diagnosed with chronic

4 hepatitis C, genotype 1, should be offered a liver biopsy every five years to determine whether

5 further treatment with antiviral drugs is warranted. (Am. CompL 4.) Plaintiff further alleges

6 that: (1) he was diagnosed with chronic hepatitis C in 2000, (2) his liver biopsy in 2007 revealed

7 Stage II of the disease, and (3) his requests for treatment in accordance with medical

8 recommendations have been refused. (Am. Comp!. 5-6.) Plaintiff also alleges that Defendant

9 Dezember, Director of the Division of Correctional Health Care Services of the California

10 Department of Corrections and Rehabilitation, maintains a policy and practice of denying

11 treatment for chronic hepatitis C until an inmate's disease is advanced beyond Stage II in

12 violation of his and others' rights under the Eighth and Fourteenth Amendments to the United

13 States Constitution. (Am. CampI. 7-8.)

14

Plaintiff initially filed his complaint in the United States District Court for the Central

15 District of California, on July 8, 2008. The complaint was personally served on Defendant

16 Dezember on August 6, 2008. On August 19,2008, this matter was transferred to the Eastern

17 District of California, Sacramento Division. Plaintiff filed his amended complaint on August 3,

18 2008.

19

OJ. Legal Arguments

20

A. Joinder of this Matter with Plata Is Unwarranted Because the Court's Screening

21

of this Matter Will Determine that Defendant Dezember Is Not in Charge of the

Health-Care System and the Recent Addition of the Receiver as a Defendant Is

22

Improper Because

23

Preliminarily, Defendant Dezember renews his request to this Court to screen and dismiss

24 Plaintiffs complaint in accordance with 28 U.S.C. § 1915A. As explained in his moving papers,

25 the Court adjudicating the Plata class action ordered a receivership to take control of the delivery

26 of medical services to all inmates under the custody of the California Department of Corrections

27 and Rehabilitation (CDCR) with the exception of those incarcerated at Pelican Bay State Prison.

28 (Def.'s Req. Judicial Not, Ex. B: Order Appointing Receiver at 1.) In its Order Appointing

Def.'s Resp. Ord. Show Cause

Jackson v. Dezember. et at. No. 2:0S-cv-01954-MCE-JFM (PR)
2

Case 2:08-cv-01954-KJM-JFM Document 24 Filed 09/19/08 Page 3 of 7

Receiver, the Court declared that the Receiver shall:

2

exercise all powers vested by the Secretary of the CDCR as they relate to the

administration, control, management, operation, and financing of the

3

California [Department of Corrections and Rehabilitation's] medical health

care system. The Secretary's exercise of the above powers is suspended for

4

the duration of the Receivership .... (Id. at 4.)

5 Because Plaintiff belongs to a health-care system that is controlled by the federal receiver

6 appointed in Plata, rather than Defendant Dezember. this action should be screened and

7 dismissed.

8

Plaintiff's recent amendment adding the federal receiverl' as a defendant does not save his

9 suit. The federal statute granting leave to sue federal receivers in some circumstances without

10 leave of the appointing court, 28 U.S.C. s 959(a), does not apply here and Plaintiff has not

11 obtained the leave ofthis Court to sue the receiver.

12

B. Rather than Joining this Suit with Plaia, this Court Shonld Dismiss It, as Other

Courts Have Done in Similar Circumstances, Because the Suit Should Not Have

13

Been Brought.

14

Suits for equitable relief from al1eged unconstitutional prison conditions cannot be brought

15 where there is an existing class action within the same subject matter. McNiel v. Guthrie, 945

16 F.2d 1163, 1165 (10th Cir. 1991); see also Green v. McKoskle, 770 F.2d 445, 446-47 (5th Cir.

17 1985) ("[T]he individual class member should be barred from pursuing his own individual

18 lawsuit that seeks equitable relief within the subject matter of the class-action."); Muhammed v.

19 Schwarzenegger, No. 06-0739 MHP (PR), 2006 WL 1883347, at *1 (N.D. Cal. July 7, 2006);

20 Coyle v. Cambra, No. 02-1810 SBA (PR), 2005 WL 2397517, at *13 (N.D. Cal. Sept. 27, 2005)

21 ("[An] action for equitable relief from alleged unconstitutional prison conditions cannot be

22 maintained where there is a pending class-action suit involving the same subject matter.");

23 Jacobson v. Schworzenegger. 357 F. Supp. 2d 1198, 1209 (C.D. Cal. 2004) (holding that a

24 district court may dismiss an individual plaintiff's action where the plaintiff is a member ofa

25 pending class action involving the same claims); Acuna v. Cambra, No. 95-2150 VRW, 1995

26 WL 607543, at *2 (N.D. Cal. Oct. 6, 1995) ("Individual lawsuits for injunctive and declaratory

27

28

1. The Attorney General does not represent the federal receiver and, to his knowledge, the

federal receiver has not been served.

Dcf.'s Resp. Ord. Show Cause

Jackson v. Dezember. et aJ. No. 2:08-cv-01954-MCE-JFM (PR)
3

Case 2:08-cv-01954-KJM-JFM Document 24 Filed 09/19/08 Page 4 of 7

relief may not be brought if there is a class action pending involving the same subject matter.").

2 The same principle applies to new class actions when one already exists concerning the same

3 subject matter. Goffv. Menke, 672 F.2d 702, 704 (8th CiT. 1982)("[A] class membersbouJd not

4 be able to prosecute a separate equitable action once his or her class has been certified.").

5

This is because "to allow individual suits would interfere with the orderly administration of

6 the class-action and risk inconsistent judgments." Gilispie v. Crawford, 858 F.2d 1101, 1103

7 (5th CiT. 1998); see also Goff, 672 F.2d at 704 (''Two of the primary purposes of Fed. R. Civ. P.

8 23 are avoidance of both duplicative litigation and inconsistent judgments .... Both of these

9 policies are undermined when two suits challenging the same prison conditions are allowed to

10 proceed.'') Accordingly, a plaintiff who is a class member may assert any equitable or

11 declaratory claims he has, but must do so by either "urging further action through the class

12 representative ... or by intervention into the class-action." Gilispe, 858 F.2d at 1103; McNiel,

13 945 F. 2d at 1166; Muhammed, 2006 WL 1883347, at *1; Coyle, 2005 WL 2397517 at *13;

14 Acuna, 1995 WL 607543 at *2.

15

In this matter, Plaintiff alleges in his amended complaint that his 2007 liver biopsy revealed

16 Stage n of chronic hepatitis C and his requests for treatment in accordance with certain medical

17 recommendations have been refused. (Am. Compl. 5.) Plaintiff further alleges that Defendants

18 maintain a policy and practice of denying treatment for chronic hepatitis C until an inmate's

19 disease is advanced beyond Stage II in violation of his and others' rights under the Eighth and

20 Fourteenth Amendments to the United States Constitution. (Am. Compl. 7.) Plaintiff seeks only

21 injunctive relief ordering Defendants to cease subjecting Plaintiff and similarly situated

22 individuals to the alleged policies and conditions described in his complaint. (Am. Compl. 9.)

23

These allegations and prayer for relief fall squarely within Plata v. Schwanenegger, No. C·

24 01-135 J THE (N.D. Cal.), a certified class action pendin8 hefore the United State District Court

25 for the Northern District of California., San Francisco Division, which concerns medical care for

26 all inmates in California and is now in the remedial phase of litigation. In their Stipulation for

27 Injunctive Relief, the parties in Plata stipulated that the Plata class "consists of all prisoners in

28 the custody ofthe CDC[R] with serious medical needs, except those incarcerated at Pelican Bay

nef.'s Resp. Ord. Show Cause

Jackson 1'. Dezember. et at. No. 2:08-cv-01954-MCE-JFM (PR)
4

Case 2:08-cv-01954-KJM-JFM Document 24 Filed 09/19/08 Page 5 of 7

1 State Prison." (Def.'s Req. Judicial Not., Ex. A: Stipulation Inj. Reliefat 5, emphasis added.)

2 Through the injunction and order appointing a receiver, the Northern District of California is

3 overseeing the overhaul of the entire prison medical system. Because Plaintiff is a prisoner

4 incarcerated at the California State Prison at Solano and is seeking injunctive relief on behalf of

5 himself and others with respect to his alleged serious medical condition, his claims fall squarely

6 within the ambit of the Plata class action.

7

Joining this action with Plata while Plata is in the delicate remedial phase would not

8 accomplish anything positive and. instead, would likely hinder the receiver's present efforts to

9 refonn an expansive medical care system. Plaintiff is already a member of the plaintiff-class in

10 Plata and can easily make his concerns known to the receiver for inclusion into the receiver's

11 reform efforts.

12

Facing circumstances similar to those here, the courts in Pride v. Correa, No. 07-CV-1382-

13 BEN (S.D. Cal.), and Gary v. Hawthron, et 01., No. 06-cv-1528-WHQ (S.D. Cal.), dismissed

14 plaintiffs' class complaints. Similarly, this Court should dismiss Plaintiff's complaint.

15 IV. Conclusion

16

Joinder of this matter with Plata would be inappropriate because the issue and relief sought

17 is already encompassed by Plata. Therefore, Defendant respectfully requests that this Court

18 III

19 III

20 III

21 III

22 III

23 III

24 III

25 III

26 III

27 III

28 III

Def.'s Resp. Ord. Show Cause

Jackson v. Dezember. el al. No. 2:08-cv-01954-MCE-JFM (PR)
5

Case 2:08-cv-01954-KJM-JFM Document 24 Filed 09/19/08 Page 6 of 7

dismiss this case in its entirety.

2

Dated: September 17, 2008

3 4 5 6 7 8 9 10
11 12
2<l140091."'J'd
13 51\2006303236

Respectful1y submitted,
EDMUND G. BROWN JR.
Attorney General of the State of California
DAVID S. CHANEY Chief Assistant Attorney General
ROCHELLE C. EAST Senior Assistant Attorney General
THOMAS S. PATTERSON Supervising Deputy Attorney General
~ /. ;- / ~ !---? -?: >-WILLIAM c. KWONG
Deputy Attorney General Attorneys for Defendant Dezember

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Def.'s Resp. Ord. Show Cause

Jackson Y. Dezember, et at.
No. 2:08-cv·OI954-MCE-JFM (PR)
6

Case 2:08-cv-01954-KJM-JFM Document 24 Filed 09/19/08 Page 7 of 7
DECLARATION OF SERVICE BY U.S. MAIL
Case Name: K. Jackson v. R. Dczcmber, et at
No.: 08-1954 MCE-JFM I declare:
On September 19.2008, I electronically filed the following document(s):
DEFENDANT DEZEMBER'S RESPONSE TO ORDER TO SHOW CAUSE
Electronic Mail Notice List
I have caused the above-mentioned document(s) to be electronically served on the following person(s), who are currently on the list to receive e-mail notices for this case:
Rebecca J. Kammerling bkammerling@kpalawyers.com
Shawn Khorrami skhorrami@kpaJawyers.com
Mark S. Ravis mravis@kpalawyers.com
Karen Joan Travis ktravis@kpalawycrs.com

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on September 19, 2008, at Oakland, California.

M.M. Argarin Declarant

Signature

 
 1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10 KEVIN JACKSON,

11

Plaintiff,

Civ. No. S-08-1954 KJM JFM

12

vs.

13 ALVARO TRAQUINA, et al.,

ORDER

14

Defendants.

15

/

16

This case is currently on the court’s calendar for February 24, 2012 for a hearing

17 on defendants’ motion for summary judgment. The case was originally set for hearing in

18 January, but in a minute order dated December 28, 2011, the hearing was reset and plaintiff was

19 given two weeks after the issuance of the order to file his opposition to the motion for summary

20 judgment. He has not opposed or otherwise responded to the court’s order.

21

IT IS THEREFORE ORDERED THAT:

22

1. The hearing on the motion for summary judgment, currently set for February

23 24, 2012, is hereby vacated; and

24 /////

25 /////

26 /////

1

1

2. Plaintiff is ordered to show cause within fourteen days of the date of this order

2 why the case should not be dismissed for his failure to prosecute and to respond to the court’s

3 order.

4 DATED: February 21, 2012.

5

6

UNITED STATES DISTRICT JUDGE

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

 
 1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10 KEVIN JACKSON

11

Plaintiff,

Civ. No. S-08-1954 KJM JFM

12

vs.

ORDER

13 ALVARO C. TRAQUINA, et al.,

14

Defendants.

15

/

16

On December 9, 2011, defendants filed a motion for summary judgment. On

17 December 28, 2011, the court granted the parties’ stipulation to extend time for hearing the

18 motion for summary judgment and gave plaintiff two weeks from the date of that order to file his

19 opposition or statement of non-opposition to the motion. Plaintiff has not responded to the

20 court’s order.

21

On February 21, 2012, the court directed plaintiff’s counsel to show cause why

22 the action should not be dismissed for failure to prosecute and to respond to the court’s order.

23 Plaintiff has not responded to this order.

24

“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss

25 an action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258,

26 1260 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a

1

1 court order the district court must weigh five factors including: ‘(1) the public's interest in

2 expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of

3 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits;

4 and (5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting

5 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46

6 F.3d 52, 53 (9th Cir. 1995).

7

In determining to recommend that this action be dismissed, the court has

8 considered Ferdik’s five factors. Here, as in Ferdik, the first two factors strongly support

9 dismissal of this action. The action has been pending for almost four years and has reached the

10 stage, set by the court’s November 19, 2009 scheduling order, for resolution of dispositive

11 motions and, if necessary, preparation for pretrial conference and jury trial. ECF No. 60.

12 Plaintiff’s failure to comply with the Local Rules and the court’s February 21, 2012, order

13 suggests that he has abandoned this action and that further time spent by the court thereon will

14 consume scarce judicial resources in addressing litigation which plaintiff demonstrates no

15 intention to pursue.

16

The fifth factor also favors dismissal. The court has advised plaintiff of the

17 requirements under the Local Rules and granted ample additional time to oppose the pending

18 motion, all to no avail. The court finds no suitable alternative to dismissal of this action.

19

Under the circumstances of this case, the third factor, prejudice to defendants

20 from plaintiff’s failure to oppose the motion, should be given little weight. Plaintiff’s failure to

21 oppose the motion does not put defendants at any disadvantage in this action. See Ferdik, 963

22 F.2d at 1262. Indeed, defendants would only be “disadvantaged” by a decision by the court to

23 continue an action plaintiff has abandoned. The fourth factor, public policy favoring disposition

24 of cases on their merits, weighs against dismissal of this action as a sanction. However, for the

25 reasons set forth above, the first, second, and fifth factors strongly support dismissal and the

26 third factor does not mitigate against it. Under the circumstances of this case, those factors

2

1 outweigh the general public policy favoring disposition of cases on their merits. See Ferdik, 963

2 F.2d at 1263.

3

For the foregoing reasons, IT IS HEREBY ORDERED that this action is

4 dismissed for failure to prosecute under Federal Rule of Civil Procedure 41(b).

5 DATED: March 12, 2012.

6

7

UNITED STATES DISTRICT JUDGE

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3

 
 Case 2:08-cv-01954-KJM-JFM Document 76 Filed 03/13/12 Page 1 of 1
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

KEVIN JACKSON,
v.
ALVARO C. TRAQUINA, ET AL.,

JUDGMENT IN A CIVIL CASE CASE NO: 2:08−CV−01954−KJM −JFM

XX −− Decision by the Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered. IT IS ORDERED AND ADJUDGED THAT JUDGMENT IS HEREBY ENTERED IN ACCORDANCE WITH THE COURT'S ORDER FILED ON 3/13/12
Victoria C. Minor Clerk of Court
ENTERED: March 13, 2012
by: /s/ R. Becknal Deputy Clerk

 
 Case: 2:08-cv-4454 As of: 03/08/2009 08:43 AM PDT 1 of 3 (FMOx), CLOSED, DISCOVERY, TRANSFERRED
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA (Western Division − Los Angeles)
CIVIL DOCKET FOR CASE #: 2:08−cv−04454−GHK−FMO

Kevin Jackson v. Robin Dezember et al Assigned to: Judge George H. King Referred to: Magistrate Judge Fernando M. Olguin Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 07/08/2008 Date Terminated: 08/19/2008 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Kevin Jackson an individual; individually and on behalf of all others similarly situated

represented by Karen J Travis Khorrami Pollard and Abir LLP 444 South Flower Street 33rd Floor Los Angeles , CA 90071 213−596−6000 Fax: 213−569−6010 Email: KTravis@kpalawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark S Ravis Khorrami Pollard and Abir LLP 444 South Flower Street 33rd Floor Los Angeles , CA 90071 213−596−6000 Fax: 213−569−6010 Email: mravis@kpalawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Kammerling Khorrami Pollard and Abir 444 South Flower Street 33rd Floor Los Angeles , CA 90071 213−596−6000 Fax: 213−596−6010 Email: bkammerling@kpalawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shawn Khorrami Khorrami Pollard and Abir LLP 444 South Flower Street 33rd Floor Los Angeles , CA 90071 213−596−6000 Fax: 213−596−6010 Email: skhorrami@kpalawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Robin Dezember Director of Division of Correctional Health Care Services of the California Department of Corrections and Rehabilitation, in his individual

Case: 2:08-cv-4454 As of: 03/08/2009 08:43 AM PDT 2 of 3
Defendant
Robin Dezember Director of Division of Correctional Health Care Services of the California Department of Corrections and Rehabilitation, official capacities
Defendant
DOES 1−10

Date Filed 07/08/2008
07/08/2008
07/08/2008 07/18/2008 07/30/2008 08/04/2008
08/05/2008 08/05/2008

# Docket Text
1 COMPLAINT against Defendants Robin Dezember(Director of Division of Correctional Health Care Services of the California Department of Corrections and Rehabilitation, in his individual), Robin Dezember(Director of Division of Correctional Health Care Services of the California Department of Corrections and Rehabilitation, official capacities), DOES 1−10. (Filing fee $ 350 PAID.), filed by Plaintiff Kevin Jackson. (et) (Additional attachment(s) added on 7/14/2008: # 1 Notice of Assignment) (ds). (Entered: 07/10/2008)
20 DAY Summons Issued re Complaint − (Discovery) 1 as to Defendants Robin Dezember(Director of Division of Correctional Health Care Services of the California Department of Corrections and Rehabilitation, in his individual), Robin Dezember(Director of Division of Correctional Health Care Services of the California Department of Corrections and Rehabilitation, official capacities), DOES 1−10. (et) (Entered: 07/10/2008)
2 CERTIFICATION AND NOTICE of Interested Parties filed by Plaintiff Kevin Jackson. (et) (ds). (Entered: 07/10/2008)
3 ORDER TO SHOW CAUSE (In Chambers) by Judge George H. King; Plaintiff's Response to Order to Show Cause why this matter should not be transferred to the Eastern District of California, Sacramento Division, is due by 7/30/2008.(pp) (Entered: 07/21/2008)
4 NOTICE OF NON−OPPOSITION TO TRANSFER TO THE U.S. DISTRICT COURT, EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION, AND NOTICE OF RELATED CASE filed by PLAINTIFF Kevin Jackson. (Kammerling, Rebecca) (Entered: 07/30/2008)
5 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error was found: Notice of Related Case shall be filed as a separate document using the proper event. Correct event is: Other Filings: Notices − Related Cases. RE: Notice (Other) 4 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (ir) (Entered: 08/05/2008)
6 NOTICE of Related Case(s) filed by PLAINTIFF Kevin Jackson. Related Case(s): Civ S 90−0520 LKK−JFM (Kammerling, Rebecca) (Entered: 08/05/2008)
7 NOTICE of Change of Attorney Information for attorney Rebecca Kammerling counsel for Plaintiff Kevin Jackson. Adding REBECCA KAMMERLING as attorney as counsel of record for KEVIN JACKSON for the reason indicated in the G−06 Notice. Filed by PLAINTIFF KEVIN JACKSON (Kammerling, Rebecca) (Entered: 08/05/2008)

Case: 2:08-cv-4454 As of: 03/08/2009 08:43 AM PDT 3 of 3

08/19/2008
08/21/2008 11/06/2008 11/06/2008

8 MINUTES OF IN CHAMBERS Order Transferring Action before Judge George H. King: Based on the allegations in the Complaint, it appeared that venue was proper within the Eastern District of California, Sacramento Division, and not the Central District of California. On 7/30/2008, Plaintiff timely filed a response, providing notice of his non−opposition to the transfer of this matter to the Eastern District. In light of this response, our 7/18/2008 order to show cause is DISCHARGED. This action is hereby TRANSFERRED to the United States District Court for the Eastern District of California, Sacramento Division. The clerk shall effect such transfer forthwith. (Made JS−6. Case Terminated.) (Attachments: # 1 CV−22 Transmittal Letter − Civil Case Transfer Out) (jp) (Entered: 08/20/2008)
9 RECEIVED Notice of Receipt of Electronic Case Transferred from California Central has been opened in Eastern District of California as case 2:08−cv−01954 filed 08/21/2008. (sm) (Entered: 08/22/2008)
10 DECLARATION filed by Plaintiff Kevin Jackson. (Kammerling, Rebecca) (Entered: 11/06/2008)
11 PROOF OF SERVICE Executed Kevin Jackson, upon Robin Dezember(Director of Division of Correctional Health Care Services of the California Department of Corrections and Rehabilitation, in his individual) served on 8/6/2008, answer due 8/26/2008. Original Summons No. (Kammerling, Rebecca) (Entered: 11/06/2008)

 
 Case: 2:08-cv-1954 As of: 03/10/2013 07:02 PM PDT 1 of 9
CIVIL,CLOSED
U.S. District Court Eastern District of California − Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:08−cv−01954−KJM−JFM

Jackson v. Traquina, et al Assigned to: Judge Kimberly J. Mueller Referred to: Magistrate Judge John F. Moulds Case in other court: California Central, 2:08−cv−04454 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/21/2008 Date Terminated: 03/13/2012 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Kevin Jackson an individual; individually and on behalf of all others similarly situated

represented by Karen Joan Travis Law Office Of Ravis &Travis 10866 Wilshire Boulevard Suite 400 Los Angeles, CA 90024 424−901−8362 Fax: 310−388−5251 Email: kjtravis@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Steven Ravis Law Office Of Mark Ravis 2500 Broadway Suite F−125 Santa Monica, CA 90404 310−889−5324 Fax: 310−388−5251 Email: mravis99@gmail.com TERMINATED: 06/15/2009

Rebecca J. Kammerling Khorami Polland and Abir 444 S. Flower Street 33rd Floor Los Angeles, CA 90026 213−596−6000 Fax: 213−596−6010 Email: bkammerling@kpalawyers.com TERMINATED: 06/15/2009

Shawn Khorrami Khorrami Pollard &Abir LLP 444 S Flower Street 33rd Floor Los Angeles, CA 90071 213−596−6000 Fax: 213−596−6010 Email: skhorrami@khorrami.com TERMINATED: 06/15/2009

V.
Defendant
Robin Dezember Director of Division of Correctional Health Care Services of the California Department of Corrections and Rehabilitation TERMINATED: 10/10/2008

represented by Christopher James Becker Attorney General's Office for the State of California 1300 I Street P.O. Box 944255 Sacramento, CA 94244−2550

Case: 2:08-cv-1954 As of: 03/10/2013 07:02 PM PDT 2 of 9

(916) 322−2201 Fax: (916) 324−5205 Email: christopher.becker@doj.ca.gov TERMINATED: 04/13/2009

William C. Kwong Deputy Attorney General 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102 (415) 703−5724 Fax: (415) 703−5843 Email: William.Kwong@doj.ca.gov TERMINATED: 10/30/2008

Defendant
J. Clark Kelso Receiver for medical services to all California state prisoners confined by the CDCR, in his individual and official capacities TERMINATED: 10/10/2008

Defendant
Alvaro C. Traquina M.D., Chief Medical Officer / Health Care Manager of CSP−Solano

represented by Jeffrey Steele Attorney General of California Department of Justice P.O. Box 944255 1300 I Street Suite 125 Sacramento, CA 94244−2550 916−323−1937 Fax: 916−324−5205 Email: jeff.steele@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Anne Tillman Attorney General's Office for the State of California 1300 I Street Suite 125 Sacramento, CA 94244−2550 916−327−7872 Fax: 916−324−5205 Email: lisa.tillman@doj.ca.gov TERMINATED: 12/18/2009 LEAD ATTORNEY

Christopher James Becker (See above for address) TERMINATED: 04/13/2009

Gregory George Gomez Attorney General's Office for the State of California 1300 I Street Suite 125 P.O. Box 944255 Sacramento, CA 94244−2550 (916) 324−3866 Fax: (916) 324−5205 Email: gregory.gomez@doj.ca.gov TERMINATED: 12/18/2009

Case: 2:08-cv-1954 As of: 03/10/2013 07:02 PM PDT 3 of 9

Defendant Jason A. Rohrer M. D.
Defendant Hsieh M. D.

Mark Steven Ravis (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey Steele (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Anne Tillman (See above for address) TERMINATED: 12/18/2009 LEAD ATTORNEY
Christopher James Becker (See above for address) TERMINATED: 04/13/2009
Gregory George Gomez (See above for address) TERMINATED: 12/18/2009
represented by Jeffrey Steele (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher James Becker (See above for address) TERMINATED: 04/13/2009
Gregory George Gomez (See above for address) TERMINATED: 12/18/2009
Lisa Anne Tillman (See above for address) TERMINATED: 12/18/2009

Date Filed 07/08/2008
07/08/2008 07/08/2008

# Docket Text
1 COMPLAINT against Defendants Robin Dezember(Director of Division of Correctional Health Care Services of the California Department of Corrections and Rehabilitation, in his individual), Robin Dezember(Director of Division of Correctional Health Care Services of the California Department of Corrections and Rehabilitation, official capacities), DOES 1−10. (Filing fee $ 350 PAID.), filed by Plaintiff Kevin Jackson. (et) (Additional attachment(s) added on 7/14/2008: # 1 Notice of Assignment) (ds). [Transferred from cacd on 8/21/2008.] (Entered: 07/10/2008)
20 DAY Summons Issued re Complaint − (Discovery) 1 as to Defendants Robin Dezember(Director of Division of Correctional Health Care Services of the California Department of Corrections and Rehabilitation, in his individual), Robin Dezember(Director of Division of Correctional Health Care Services of the California Department of Corrections and Rehabilitation, official capacities), DOES 1−10. (et) [Transferred from cacd on 8/21/2008.] (Entered: 07/10/2008)
2 CERTIFICATION AND NOTICE of Interested Parties filed by Plaintiff Kevin Jackson. (et) (ds). [Transferred from cacd on 8/21/2008.] (Entered: 07/10/2008)

Case: 2:08-cv-1954 As of: 03/10/2013 07:02 PM PDT 4 of 9

07/18/2008 07/30/2008
08/04/2008
08/05/2008 08/05/2008
08/19/2008
08/21/2008 08/21/2008 08/21/2008 08/26/2008 08/26/2008 08/26/2008 08/26/2008 08/26/2008

3 ORDER TO SHOW CAUSE (In Chambers) by Judge George H. King; Plaintiff's Response to Order to Show Cause why this matter should not be transferred to the Eastern District of California, Sacramento Division, is due by 7/30/2008.(pp) [Transferred from cacd on 8/21/2008.] (Entered: 07/21/2008)
4 NOTICE OF NON−OPPOSITION TO TRANSFER TO THE U.S. DISTRICT COURT, EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION, AND NOTICE OF RELATED CASE filed by PLAINTIFF Kevin Jackson. (Kammerling, Rebecca) [Transferred from cacd on 8/21/2008.] (Entered: 07/30/2008)
5 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error was found: Notice of Related Case shall be filed as a separate document using the proper event. Correct event is: Other Filings: Notices − Related Cases. RE: Notice (Other) 4 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (ir) [Transferred from cacd on 8/21/2008.] (Entered: 08/05/2008)
6 NOTICE of Related Case(s) filed by PLAINTIFF Kevin Jackson. Related Case(s): Civ S 90−0520 LKK−JFM (Kammerling, Rebecca) [Transferred from cacd on 8/21/2008.] (Entered: 08/05/2008)
7 NOTICE of Change of Attorney Information for attorney Rebecca Kammerling counsel for Plaintiff Kevin Jackson. Adding REBECCA KAMMERLING as attorney as counsel of record for KEVIN JACKSON for the reason indicated in the G−06 Notice. Filed by PLAINTIFF KEVIN JACKSON (Kammerling, Rebecca) [Transferred from cacd on 8/21/2008.] (Entered: 08/05/2008)
8 MINUTES OF IN CHAMBERS Order Transferring Action before Judge George H. King: Based on the allegations in the Complaint, it appeared that venue was proper within the Eastern District of California, Sacramento Division, and not the Central District of California. On 7/30/2008, Plaintiff timely filed a response, providing notice of his non−opposition to the transfer of this matter to the Eastern District. In light of this response, our 7/18/2008 order to show cause is DISCHARGED. This action is hereby TRANSFERRED to the United States District Court for the Eastern District of California, Sacramento Division. The clerk shall effect such transfer forthwith. (Made JS−6. Case Terminated.) (Attachments: # 1 CV−22 Transmittal Letter − Civil Case Transfer Out) (jp) [Transferred from cacd on 8/21/2008.] (Entered: 08/20/2008)
9 CASE TRANSFERRED IN from District of California Central; Case Number 2:08−cv−04454. Original file with documents numbered 1 − 8, certified copy of transfer order and docket sheet received. (Entered: 08/21/2008)
10 CIVIL NEW CASE DOCUMENTS ISSUED; (Attachments: # 1 Consent Forms, # 2 VDRP Forms) (Waggoner, D) (Entered: 08/21/2008)
SERVICE BY MAIL: 10 Civil New Case Documents for MCE served on Karen Travis NCAED (Waggoner, D) (Entered: 08/21/2008)
11 Waiver of Reply and Demand for Jury Trial by Robin Dezember. Attorney Kwong, William C. added. (Kwong, William) Modified on 8/28/2008 (Kaminski, H). (Entered: 08/26/2008)
12 MOTION that the Court Screen Plaintiff's Complaint Under 28 U.S.C. § 1915A by Robin Dezember. (Kwong, William) Modified on 8/28/2008 (Kaminski, H). (Entered: 08/26/2008)
13 REQUEST for JUDICIAL NOTICE by Robin Dezember. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kwong, William) (Entered: 08/26/2008)
14 PROPOSED ORDER re Defendant's Motion by Robin Dezember. (Kwong, William) Modified on 8/28/2008 (Kaminski, H). (Entered: 08/26/2008)
15 CERTIFICATE of SERVICE by Robin Dezember re 12 MOTION , 11 Notice, 14 Proposed Order, 13 Request for Judicial Notice. (Kwong, William) Modified on 8/28/2008 (Kaminski, H). (Entered: 08/26/2008)

Case: 2:08-cv-1954 As of: 03/10/2013 07:02 PM PDT 5 of 9

08/27/2008
08/28/2008 08/29/2008 08/29/2008 08/29/2008 08/29/2008 09/02/2008 09/03/2008 09/04/2008
09/19/2008 09/26/2008 09/30/2008
10/10/2008 10/10/2008 10/10/2008
10/30/2008 11/05/2008

16 MINUTE ORDER (Text Only): The Court is in receipt of Defendant's Motion for Screening and Dismissing the Case 12 . The Motion as filed is deficient and the Defendant is directed to renotice the Motion in compliance with Local Rule 78−230(a). Accordingly, the motion is terminated. Signed by Judge Morrison C. England, Jr. on 8/27/2008. (Deutsch, S) (Entered: 08/27/2008)
21 MAIL RETURNED "Forward time Expired" 10 Civil New Case Documents for MCE. Mail sent to Shawn Khorrami. (Mena−Sanchez, L) (Entered: 09/02/2008)
17 REQUEST for Defendant's Request that the Court Screen Plaintiff's Complaint Under 28 U.S.C. § 1915A by Robin Dezember. (Kwong, William) (Entered: 08/29/2008)
18 REQUEST for JUDICIAL NOTICE by Robin Dezember. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kwong, William) (Entered: 08/29/2008)
19 PROPOSED ORDER [Propsed] Order Granting Defendant's Request for Screening and Dismissing the Case re 17 Request − ATY, 18 Request for Judicial Notice by Robin Dezember. (Kwong, William) (Entered: 08/29/2008)
20 CERTIFICATE of SERVICE by Robin Dezember re 17 Request − ATY, 19 Proposed Order, 18 Request for Judicial Notice. (Kwong, William) (Entered: 08/29/2008)
RE−SERVICE BY MAIL: 10 Civil New Case Documents for MCE served on Shawn Khorrami [Atty not registred]. (Mena−Sanchez, L) (Entered: 09/02/2008)
22 FIRST AMENDED COMPLAINT against Robin Dezember by Kevin Jackson.(Ravis, Mark) (Entered: 09/03/2008)
23 ORDER TO SHOW CAUSE (Text Only), signed by Judge Morrison C. England, Jr. on 09/04/08, ORDERING the parties to show cause why this case should not be transferred to the Northern District of California to be joined with the class action case of Plata v. Schwarzenegger. Written response to this Order to Show Cause to be filed no later than September 26, 2008. Hearing to be set thereafter at the Court's discretion. (Schultz, C) (Entered: 09/04/2008)
24 RESPONSE by defendant Dezember to Order to Show Cause 23 . (Kwong, William) Modified on 9/22/2008 (Mena−Sanchez, L). (Entered: 09/19/2008)
25 RESPONSE to ORDER to SHOW CAUSE by Kevin Jackson. (Travis, Karen) (Entered: 09/26/2008)
26 MINUTE ORDER (Text Only): In light of the responses to the Court's 9/4/08 Order to Show Cause, the matter will not be transferred to the Northern District of California. Plaintiff is GRANTED ten (10) days to file an amended complaint. Failure to file an amended complaint within said ten (10) day period will result in this action being dismissed without prejudice, without further notice and upon the Court's own motion. Signed by Judge Morrison C. England, Jr on 09/30/08. (Schultz, C) (Entered: 09/30/2008)
27 FIRST AMENDED COMPLAINT against all defendants by Kevin Jackson. (Travis, Karen) Modified on 10/20/2008 (Marciel, M). (Entered: 10/10/2008)
PARTY UPDATE: defendants Alvaro C. Traquina, Jason A. Rohrer, and Hsieh added; defendants Robin Dezember and J. Clark Kelso terminated. (Marciel, M) (Entered: 11/05/2008)
30 CLERK'S NOTICE of DOCKET CORRECTION: pursuant to 26 Minute Order and 27 Amended Complaint, defendants Alvaro C. Traquina, Jason A. Rohrer, and Hsieh added; defendants Robin Dezember and J. Clark Kelso terminated. (Marciel, M) (Entered: 11/05/2008)
28 DESIGNATION of COUNSEL FOR SERVICE to add attorney Christopher Becker and attorney William C. Kwong terminated. (Becker, Christopher) Modified on 11/3/2008 (Matson, R). (Entered: 10/30/2008)
29 SUMMONS ISSUED as to *Alvaro C. Traquina, Jason A. Rohrer, Hsieh* with answer to complaint due within *20* days. Attorney *Karen Travis, Esq.*

Case: 2:08-cv-1954 As of: 03/10/2013 07:02 PM PDT 6 of 9

11/20/2008 01/20/2009 01/29/2009 02/04/2009
03/12/2009 03/31/2009
04/13/2009 04/17/2009 05/26/2009 05/26/2009 05/26/2009 05/28/2009 06/02/2009

*Khorrami Pollard &Abir LLP* *444 S. Flower Street, 23rd Floor* *Los Angeles, CA 90071*. (Marciel, M) (Entered: 11/05/2008)
31 MOTION to DISMISS ; Memorandum of Points and Authorities by Alvaro C. Traquina, Jason A. Rohrer, Hsieh. Attorney Becker, Christopher James added. Motion Hearing set for 2/6/2009 at 09:00 AM in Courtroom 7 (MCE) before Judge Morrison C. England Jr.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proof of Service)(Becker, Christopher) (Entered: 11/20/2008)
32 OPPOSITION by Kevin Jackson to 31 Motion to Dismiss. (Kammerling, Rebecca) Modified on 1/23/2009 (Engbretson, K.). (Entered: 01/20/2009)
33 REPLY/RESPONSE to Plaintiff's Opposition to Defendants' Motion to Dismiss by Alvaro C. Traquina, Jason A. Rohrer, Hsieh. (Becker, Christopher) (Entered: 01/29/2009)
34 MINUTE ORDER (Text Only): On the Court's own motion and pursuant to Local Rule 78−230(h), the Defendants' Motion to Dismiss 31 , scheduled for hearing on 2/6/2009, is submitted without oral argument. The hearing date of 2/6/2009 is vacated. If the Court determines that oral argument is needed, it will be scheduled at a later date.Signed by Judge Morrison C. England, Jr. on 2/4/2009. (Deutsch, S) (Entered: 02/04/2009)
35 ORDER signed by Judge Morrison C. England, Jr on 3/11/09 ORDERING that 31 dfts' motion to dismiss is DENIED, without prejudice to renewing said motion upon an adequate evidentiary record. (Kastilahn, A) (Entered: 03/12/2009)
36 MINUTE ORDER (Text Only): YOU ARE HEREBY NOTIFIED that pursuant to the Order Requiring Joint Status Report filed on 8/21/2008, a joint status report should have been filed within sixty (60) days of service of the complaint on all parties, or from the date of removal, the parties shall confer as required by Fed. R. Civ. P. 26(f) and shall prepare and submit to the court a joint status report that includes the Rule 26(f) discovery plan. A review of the docket shows that no report has been filed. Accordingly, a Joint Status Report shall be filed on or before 4/21/2009, with all parties participating. Plaintiff shall serve a copy of this minute order on any defendant who has not yet appeared. The parties are reminded that failure to file a joint status report, in a timely manner, may result in the imposition of sanctions. Signed by Judge Morrison C. England, Jr on 3/31/2009. (Espana−Purpur, A) (Entered: 03/31/2009)
37 NOTICE of Change in Designation of Counsel for Service and Request to Terminate Christopher J. Becker from Service List by Alvaro C. Traquina, Jason A. Rohrer, Hsieh. Attorney Tillman, Lisa Anne added. (Tillman, Lisa) (Entered: 04/13/2009)
38 REQUEST for an Extension of Time re: Joint Status Report by Alvaro C. Traquina, Jason A. Rohrer, Hsieh. (Attachments: # 1 Tillman Declaration; # 2 Proposed Order)(Tillman, Lisa) Modified on 4/20/2009 (Benson, A.). (Entered: 04/17/2009)
39 MOTION to DISMISS by Alvaro C. Traquina, Jason A. Rohrer, Hsieh. Motion Hearing set for 07/30/09 at 09:00 AM in Courtroom 7 (MCE) before Judge Morrison C. England, Jr. (Tillman, Lisa) (Entered: 05/26/2009)
40 DECLARATION of N. Grannis in support of 39 Motion to Dismiss. (Tillman, Lisa) (Entered: 05/26/2009)
41 DECLARATION of S. Cervantes in support of 39 Motion to Dismiss. (Tillman, Lisa) (Entered: 05/26/2009)
42 MINUTE ORDER (Text Only): On the Court's own motion, the 7/30/2009 Defendants' Motion to Dismiss 39 set for hearing at 9:00 a.m. is VACATED and CONTINUED for hearing on 7/30/2009 at 2:00 p.m. in Courtroom 7. Signed by Judge Morrison C. England, Jr. on 5/28/2009. (Deutsch, S) (Entered: 05/28/2009)
43 ORDER signed by Judge Morrison C. England, Jr on 6/2/09 ORDERING dfts' request for extension of time to file a joint status report is GRANTED; the joint status report is now due 6/11/09. (Carlos, K) (Entered: 06/02/2009)

Case: 2:08-cv-1954 As of: 03/10/2013 07:02 PM PDT 7 of 9

06/11/2009 06/11/2009 06/11/2009 06/11/2009 06/15/2009 06/16/2009 06/17/2009 07/13/2009 07/22/2009 07/24/2009
07/29/2009
08/28/2009
09/02/2009 09/09/2009 10/05/2009

44 REQUEST for an Extension of Time Re: Joint Status Report by Kevin Jackson. (Kammerling, Rebecca) (Entered: 06/11/2009)
45 DECLARATION of Lourdes DeArmas, Esq. re 44 Request. (Kammerling, Rebecca) (Entered: 06/11/2009)
46 PROPOSED ORDER re 44 Request for extension of time by Kevin Jackson. (Kammerling, Rebecca) Modified on 6/12/2009 (Gaydosh, J). (Entered: 06/11/2009)
47 SUBSTITUTION of ATTORNEY − PROPOSED, submitted by Kevin Jackson. (Kammerling, Rebecca) (Entered: 06/11/2009)
48 DESIGNATION of COUNSEL FOR SERVICE. Attorneys Rebecca J. Kammerling and Shawn Khorrami are terminated. (Ravis, Mark) Modified on 6/16/2009 (Marciel, M). (Entered: 06/15/2009)
49 JOINT STATUS REPORT by Alvaro C. Traquina, Jason A. Rohrer, Hsieh. (Tillman, Lisa) (Entered: 06/16/2009)
50 ORDER signed by Judge Morrison C. England, Jr on 06/16/09 GRANTING 44 Request For Extension of Time. IT IS ORDERED that the Joint Preliminary Report and Discovery Plan is now due on June 16, 2009. (Streeter, J) (Entered: 06/17/2009)
51 OPPOSITION by Kevin Jackson to 39 Motion to Dismiss. (Ravis, Mark) (Entered: 07/13/2009)
52 REPLY to 51 opposition to motion to dismiss by Alvaro C. Traquina, Jason A. Rohrer, Hsieh. (Tillman, Lisa) Modified on 7/23/2009 (Gaydosh, J). (Entered: 07/22/2009)
53 MINUTE ORDER (Text Only): The Court received the Substitution of Attorney 47 filed on 6/11/2009. On 6/12/2009 the Court sent an email requesting the moving party comply with Local Rule 5−137(b), regarding the requirements for proper filing of a proposed order. You are required to email the proposed order (in WordPerfect or Microsoft Word) to chambers in addition to filing the pdf version via the CM/ECF system. Pursuant to Local Rule 1−101, the definition for "signature", you may enter /s/ for signatures for all counsel. Please submit your proposed order today, in word processing format to: mceorders@caed.uscourts.gov. Signed by Judge Morrison C. England, Jr. on 7/24/2009. (Deutsch, S) (Entered: 07/24/2009)
54 MINUTE ORDER (Text Only): On the Court's own motion and pursuant to Local Rule 78−230(h), the Defendant's Motion to Dismiss 39 , scheduled for hearing on 7/30/2009, is submitted without oral argument. The hearing date of 7/30/2009 is vacated. If the Court determines that oral argument is needed, it will be scheduled at a later date. Signed by Judge Morrison C. England, Jr. on 7/29/2009. (Deutsch, S) (Entered: 07/29/2009)
55 MINUTE ORDER (Text Only): The 6/11/2009 Substitution of Attorney 47 is STRICKEN from the record failure to comply with the Court's 7/24/2009 Minute Order 53 and 6/12/2009 email requesting compliance with Local Rule 5−137(b). Signed by Judge Morrison C. England, Jr. on 8/28/2009. (Deutsch, S) (Entered: 08/28/2009)
56 SUBSTITUTION of ATTORNEY − PROPOSED, submitted by Kevin Jackson. (Travis, Karen) (Entered: 09/02/2009)
57 ORDER SUBSTITUTING ATTORNEY signed by Judge Morrison C. England, Jr., on 9/8/09: Attorney Karen Travis SUBSTITUTED in place of Attorney Dylan Pollard for Pltf Kevin Jackson.(Kastilahn, A) (Entered: 09/09/2009)
58 MEMORANDUM AND ORDER signed by Judge Morrison C. England, Jr on 10/02/09 ORDERING the Defendants' Motion to Dismiss 39 is DENIED. The parties shall file a Joint Status Report not later than twenty (20) calendar days after this Order is filed electronically. (Becknal, R) (Entered: 10/05/2009)

Case: 2:08-cv-1954 As of: 03/10/2013 07:02 PM PDT 8 of 9

10/26/2009 11/19/2009
11/19/2009
12/18/2009 02/16/2010 10/13/2010 01/20/2011 03/07/2011
09/13/2011 09/21/2011 11/02/2011 12/09/2011
12/09/2011

59 JOINT STATUS REPORT by Alvaro C. Traquina, Jason A. Rohrer, Hsieh. (Tillman, Lisa) (Entered: 10/26/2009)
60 PRETRIAL SCHEDULING ORDER, signed by Judge Morrison C. England, Jr., on 11/18/09: Designation of Expert Witnesses DUE by 11/2/2011. Discovery is DUE by 9/2/2011. All dispositive motions shall be heard by 1/2/2012. Final Pretrial Conference is SET for 5/3/2012 at 02:00 PM in Courtroom 7 (MCE) before Judge Morrison C. England, Jr. Joint final pretrial conf statement DUE by 4/12/2012. Trial briefs DUE by 4/19/2012 by 4:00 p.m. Evidentiary or procedural motions DUE by 4/12/2012, oppositions DUE by 4/19/2012, and any reply DUE by 4/26/2012. Jury Trial is SET for 7/2/2012 at 09:00 AM in Courtroom 7 (MCE) before Judge Morrison C. England Jr., and it's estimated to last five days. (Kastilahn, A) (Entered: 11/19/2009)
61 CLERK'S NOTICE of DOCKET CORRECTION as to the 11/19/2009 Pretrial Status Scheduling Order 60 : Paragraph XII (page 11, lines 14−16) is striken. The matter is not referred to the Voluntary Dispute Resolution Program. Pursuant to Local Rule 16−271 parties will need to lodge a stipulation and proposed order requesting referral to the Voluntary Dispute Resolution Program. (Deutsch, S) (Entered: 11/19/2009)
62 DESIGNATION of COUNSEL FOR SERVICE. Added attorney Jeffrey Steele for Alvaro C. Traquina, Jason A. Rohrer and Hsieh, attorney Gregory George Gomez and Lisa Anne Tillman terminated. (Steele, Jeffrey) Modified on 12/29/2009 (Engbretson, K.). (Entered: 12/18/2009)
63 LETTER from Charles Walton (non−party) requesting a copy of the docket. (Matson, R) (Entered: 02/18/2010)
64 REQUEST for by Mike Bazley for copies of plaintiff's 51 Opposition to 39 Motion to Dismiss. (Marciel, M) (Entered: 10/15/2010)
65 ORDER by Chief Judge Anthony W. Ishii: Due to the appointment of Judge Kimberly J. Mueller to the position of U.S. District Judge, this action is reassigned from *Judge Morrison C. England Jr.* to Judge Mueller for all further proceedings. (Deutsch, S) (Entered: 01/20/2011)
66 MINUTE ORDER issued by Courtroom Deputy C. Schultz for District Judge Kimberly J. Mueller on 3/7/2011 ORDERING that in light of the recent reassignment, the Final Pretrial Conference set for 5/3/2012 and the Jury Trial set for 7/2/2012 before District Judge Morrison C. England Jr. are VACATED and RESET as follows: Final Pretrial Conference SET for 5/9/2012 at 11:00 AM and Jury Trial SET for 7/2/2012 at 9:00 AM in Courtroom 3 before District Judge Kimberly J. Mueller. The parties shall file a joint pretrial statement no later than 4/25/2012. (Text Only) (Schultz, C) (Entered: 03/07/2011)
67 STIPULATION and PROPOSED ORDER to continue Discover by Kevin Jackson. (Attachments: # 1 Proposed Order) (Ravis, Mark) Modified on 9/14/2011 (Marciel, M) (Entered: 09/13/2011)
68 ORDER signed by Judge Kimberly J. Mueller on 9/20/2011 GRANTING the stipulation of the parties to extend discovery cut−off for 45 days. Discovery due by 10/14/2011.(Michel, G) (Entered: 09/21/2011)
69 DISCLOSURE of EXPERT WITNESS by defendants. (Attachments: # 1 Exhibit A − Part 1, # 2 Exhibit A − Part 2, # 3 Exhibit B) (Steele, Jeffrey) Modified on 11/3/2011 (Marciel, M). (Entered: 11/02/2011)
70 MOTION for SUMMARY JUDGMENT by Hsieh, Jason A. Rohrer, Alvaro C. Traquina. Motion Hearing set for 1/13/2012 at 10:00 AM in Courtroom 3 before Judge Kimberly J. Mueller. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Statement of Undisputed Facts, # 3 Declaration of McAlpine, # 4 Declaration of Jeffrey Steele, # 5 Declaration of Bick)(Steele, Jeffrey) (Entered: 12/09/2011)
71 NOTICE OF LODGING DOCUMENT IN PAPER by Hsieh, Jason A. Rohrer, Alvaro C. Traquina: Deposition Transcript of Plaintiff Kevin Jackson. (Steele, Jeffrey) Modified on 12/12/2011. Received and routed to file room on 12/12/11.

Case: 2:08-cv-1954 As of: 03/10/2013 07:02 PM PDT 9 of 9

12/27/2011 12/28/2011
02/21/2012
03/13/2012 03/13/2012 03/21/2012 04/05/2012

(Meuleman, A). (Entered: 12/09/2011)
72 STIPULATION To Modify Scheduling Order by Hsieh, Jason A. Rohrer, Alvaro C. Traquina. (Steele, Jeffrey) (Entered: 12/27/2011)
73 MINUTE ORDER issued by Courtroom Deputy C. Schultz for Judge Kimberly J. Mueller on 12/28/2011: The parties' stipulation to extend the time for hearing dispositive motions 72 is GRANTED. Defendants' motion for summary judgment 70 , currently set for 1/13/2012 is RESET to 2/24/2012 at 10:00 AM; Plaintiff's reply to the motion is due within two weeks of the date of this order, with the reply due a week after opposition is filed. (TEXT ONLY ENTRY)(Schultz, C) (Entered: 12/28/2011)
74 ORDER signed by Judge Kimberly J. Mueller on 2/21/12, ORDERING that the hearing on the motion for summary judgment, currently set for 2/24/12, is hereby VACATED. Plaintiff is ordered to SHOW CAUSE within 14 days of the date of this order why the case should not be dismissed for his failure to prosecute and to respond to the court's order. (Kastilahn, A) (Entered: 02/21/2012)
75 ORDER signed by Judge Kimberly J. Mueller on 3/12/12 ORDERING that this action is dismissed for failure to prosecute under Federal Rule of Civil Procedure 41(b). CASE CLOSED(Becknal, R) (Entered: 03/13/2012)
76 JUDGMENT dated *3/13/12* pursuant to order signed by Judge Kimberly J. Mueller on 3/12/12. (Becknal, R) (Entered: 03/13/2012)
77 NOTICE Bill of Costs by Hsieh, Jason A. Rohrer, Alvaro C. Traquina. (Steele, Jeffrey) (Entered: 03/21/2012)
78 BILL of COSTS TAXED by Hsieh, Jason A. Rohrer, Alvaro C. Traquina. (Meuleman, A) Modified on 4/9/2012 (Meuleman, A). (Entered: 04/09/2012)