Opinion
Case No. 17-00595 BLF (PR)
08-09-2018
JOHN A. INDIVERI, Plaintiff, v. RICHARD MACK, et al., Defendants.
ORDER GRANTING MOTION FOR SCREENING OF SECOND AMENDED COMPLAINT; OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; SETTING BRIEFING SCHEDULE; DIRECTING PLAINTIFF TO PROVIDE MORE INFORMATION; INSTRUCTIONS TO CLERK
(Docket No. 45)
Plaintiff, a California state prisoner, proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against medical personnel at the Salinas Valley State Prison ("SVSP") and the medical appeals office. On June 6, 2016, the Court issued an order of service directing the Clerk to mail Requests for Waiver of Service of Summons upon Defendants Richard Mack, K. Kumar, Dr. D. Do-Williams, J. Dunlap, L. Gamboa, H. Hanter, and J. Lewis. (Docket No. 6.) After the Court ordered service but before Defendants appeared, Plaintiff filed a first amended complaint. (Docket No. 18, hereafter "FAC.") The Court screened the FAC and dismissed it with leave to amend to attempt to state sufficient facts against Defendants Health Care Services, the Department of Corrections, and specific individual(s) at the CTC Pharmacy. (Docket No. 36.) Plaintiff subsequently filed a second amended complaint, (Docket No. 38, hereafter "SAC"). Defendants' motion for screening of the SAC, (Docket No. 45), is GRANTED.
On August 14, 2017, this action was reassigned to this Court because Defendants declined Magistrate Judge Jurisdiction. (See Docket Nos. 27, 28 and 29.)
This matter shall proceed to briefing on the cognizable claims discussed below. The briefing schedule for Plaintiff's motion for summary, (Docket No. 41), is also set forth below. See infra at 6-7.
DISCUSSION
A. Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). B. Plaintiff's Claims
Plaintiff claims that on July 5, 2012, he underwent surgery to treat his anal bleeding and daily bowel movements after three years of complaining. (SAC at 3.) His surgeon, Dr. Mark F. Palmer, prescribed "psyllium 3 times daily with a goal of 30 grams daily." (Id.) Between July 5, 2012 and December 16, 2013, Plaintiff's bleeding pain and multiple liquid bowel movements abated. (Id.) On December 17, 2013, Defendants Greenman, Graham, Mack, Kumar, Gamboa, and Dunlap "conspired and agreed to stop issuing psyllium regardless of the medical need," and substituted fiberlax "ignoring plaintiff's medical records identifying fiberlax as an allergic medication." (Id.) Plaintiff claims that when he filed an administrative appeal, Defendant Do-Williams "ordered removal of fiberlax from plaintiff's allergic medication warning." (Id.) When Plaintiff obtained a prescription for psyllium from a different physician, Defendant Kumar "intercepted" the order and again ordered fiberlax instead. (Id.) After Plaintiff began to have renewed symptoms of bleeding, pain, and multiple bowel movements, he was seen by Dr. Palmer on May 5, 2014, who issued a new order for psyllium to 3 times daily. (Id.) Another physician prescribed psyllium on December 23, 2014, which again was overridden by Defendant Greenman, Graham, Jumar, and Gamboa with an order for fiberlax. (Id. at 4.) On May 16, 2016, Plaintiff received another prescription for psyllium from another consultant, which was again overridden by Defendant Greenman, Graham, Kumar, and Gamboa. (Id.) Plaintiff seeks damages as well as injunctive and declaratory relief. (Id. at 7.) Plaintiff's allegations are sufficient to state a cognizable Eighth Amendment claim under § 1983 for deliberate indifference to serious medical needs. The Court will exercise supplemental jurisdiction over Plaintiff's state claim of intentional infliction of emotional distress, (id. at 6). See United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).
Plaintiff also seeks "entity liability, under Monell, against defendant California Department of Corrections, Health Care Services, and Pharmacy" for allowing the civil conspiracy to harm and injure" him. (Id. at 6.) Local governments are "persons" subject to liability under 42 U.S.C. § 1983 where official policy or custom causes a constitutional tort, see Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978). To impose municipal liability under § 1983 for a violation of constitutional rights resulting from governmental inaction or omission, a plaintiff must show: "(1) that he possessed a constitutional right of which he or she was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional rights; and (4) that the policy is the moving force behind the constitutional violation." Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992). Even if we assume that the Department of Corrections, Health Care Services, and the Pharmacy constitute a municipality, Plaintiff's allegations are insufficient to state a Monell claim because he makes no allegation that there was an official policy or custom which was the moving force behind the violation of his constitutional rights. This being Plaintiff's second amended complaint, no further amendments shall be permitted. See Wagh v. Metris Direct, Inc., 363 F.3d 821, 830 (9th Cir. 2003) (district court's discretion to deny leave to amend particularly broad where plaintiff has previously filed an amended complaint); Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). C. Unserved Defendant D. Do-Williams
The Court directed Plaintiff to provide more information for unserved Defendant D. Do-Williams to avoid dismissal of the claims against him under Federal Rule of Civil Procedure 4(m). (Docket No. 31.) Plaintiff filed a response asserting that SVSP "mislead the Court as to [this Defendant's] whereabouts to avoid service." (Docket No. 32 at 2.) However, it is ultimately Plaintiff's responsibility to provide sufficient information to allow the Marshal to locate and serve this Defendant. In the interest of justice, Plaintiff shall be afforded one final opportunity to provide this information and avoid dismissal of his claims against Defendant Do-Williams. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (holding prisoner failed to show cause why prison official should not be dismissed under Rule 4(m) where prisoner failed to show he had provided Marshal with sufficient information to effectuate service). In the time provided below, Plaintiff must file notice providing the Court with current and accurate location information for Defendant Do-Williams such that the Marshal is able to effect service. See infra at 7.
CONCLUSION
For the reasons state above, the Court orders as follows:
1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the second amended complaint, (Docket No 38), all attachments thereto, and a copy of this order upon Defendants Ellen Greenman, MD, and Kathryn Graham at Salinas Valley State Prison (P.O. Box 1050, Soledad, CA 93960). The Clerk shall also mail a copy of this Order to Plaintiff and counsel for Defendants who have already appeared in this action.
Defendants California Department of Corrections, Health Care Services, and the CTC Pharmacy are DISMISSED from this action as Plaintiff has failed to state a cognizable claim against them. The Clerk shall terminate them from this action.
3. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure requires them to cooperate in saving unnecessary costs of service of the summons and the complaint. Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of such service unless good cause shown for their failure to sign and return the waiver form. If service is waived, this action will proceed as if Defendants had been served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer before sixty (60) days from the day on which the request for waiver was sent. (This allows a longer time to respond than would be required if formal service of summons is necessary.) Defendants are asked to read the statement set forth at the foot of the waiver form that more completely describes the duties of the parties with regard to waiver of service of the summons. If service is waived after the date provided in the Notice but before Defendants have been personally served, the Answer shall be due sixty (60) days from the date on which the request for waiver was sent or twenty (20) days from the date the waiver form is filed, whichever is later.
4. No later than ninety-one (91) days from the date this order is filed, Defendants shall file a motion for summary judgment or other dispositive motion with respect to the claims in the complaint found to be cognizable above.
a. Any motion for summary judgment shall be supported by adequate factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor qualified immunity found, if material facts are in dispute. If any Defendant is of the opinion that this case cannot be resolved by summary judgment, he shall so inform the Court prior to the date the summary judgment motion is due.
b. In the event Defendants file a motion for summary judgment, the Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate warnings under Rand v. Rowland , 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See Woods v. Carey , 684 F.3d 934, 940 (9th Cir. 2012).
5. Plaintiff's opposition to the dispositive motion shall be filed with the Court and served on Defendants no later than twenty-eight (28) days from the date Defendants' motion is filed.
Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must come forward with evidence showing triable issues of material fact on every essential element of his claim). Plaintiff is cautioned that failure to file an opposition to Defendants' motion for summary judgment may be deemed to be a consent by Plaintiff to the granting of the motion, and granting of judgment against Plaintiff without a trial. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 F.3d 651, 653 (9th Cir. 1994).
6. Defendants shall file a reply brief no later than fourteen (14) days after Plaintiff's opposition is filed.
7. Plaintiff has filed a motion for summary judgment and supporting papers. (Docket Nos. 41-44.) Defendants' opposition to the motion shall be filed twenty-eight (28) days from the date this order is filed. Plaintiff's reply shall be filed no later than fourteen (14) days after Defendants' opposition is filed.
8. The above motions shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motions unless the Court so orders at a later date.
9. All communications by the Plaintiff with the Court must be served on Defendants, or Defendants' counsel once counsel has been designated, by mailing a true copy of the document to Defendants or Defendants' counsel.
10. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is required before the parties may conduct discovery.
11. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the court informed of any change of address and must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
12. Extensions of time must be filed no later than the deadline sought to be extended and must be accompanied by a showing of good cause.
13. Plaintiff must provide the Court with current and accurate location information for Defendant D. Do-Williams within twenty-eight (28) days from the date this order is filed such that the Marshal is able to effect service. Failure to do so will result in the dismissal of his claims against Defendant Do-Williams without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
This order terminates Docket No. 45.
IT IS SO ORDERED. Dated: 8/9/2018
/s/_________
BETH LABSON FREEMAN
United States District Judge