1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 MINH CONG DO, 11 Case No. 23-cv-05906 BLF (PR) Plaintiff, 12 ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE 13 v. DISPOSITIVE MOTION OR NOTICE REGARDING SUCH 14 CA CORRECTIONS HEALTH CARE MOTION; INSTRUCTIONS TO CLERK SERVICES, et al., 15 Defendants. 16 17 18 Plaintiff, a state inmate at Calipatria State Prison, filed the instant pro se civil rights 19 action pursuant to 42 U.S.C. § 1983 against medical staff at Pelican Bay State Prison 20 (“PBSP”) where he was formerly housed. Dkt. No. 8. The Court dismissed the complaint 21 with leave to amend to correct various deficiencies. Dkt. No. 12. Plaintiff filed an 22 amended complaint. Dkt. No. 19. 23 24 DISCUSSION 25 A. Standard of Review 26 A federal court must conduct a preliminary screening in any case in which a 27 prisoner seeks redress from a governmental entity or officer or employee of a 1 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 2 upon which relief may be granted or seek monetary relief from a defendant who is immune 3 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 4 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 6 elements: (1) that a right secured by the Constitution or laws of the United States was 7 violated, and (2) that the alleged violation was committed by a person acting under the 8 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 9 B. Plaintiff’s Claims 10 In the original complaint, Plaintiff alleged “medical malpractice, medical 11 negligence, and [i]nadequate medical care” by PBSP and contracted employees with the 12 California Corrections Health Care Services (“CCHCS”). Dkt. No. 8 at 2. The underlying 13 incident was a vaccine shot administered by Nurse Hakaki on March 29, 2023, which 14 allegedly caused nerve damage in his left arm leading to loss of partial mobility. Id. at 5. 15 The Court found the allegations were insufficient to state a deliberate indifference claim 16 under the Eighth Amendment and granted leave to amend to attempt to correct this 17 deficiency. Dkt. No. 12. 18 Plaintiff’s amended complaint names only Nurse Hakaki and Dr. Thomas Bzoskie 19 as defendants and claims they acted with deliberate indifference to serious medical needs. 20 Dkt. No. 19. Plaintiff alleges that when Nurse Hakaki administered the shot, she “thrust 21 the needle in Plaintiff’s left arm with unnecessary force causing a[n] unnecessary[] and 22 wanton[] infliction of pain.” Id. at 3. When Plaintiff later complained of pain, numbness, 23 and loss of mobility in the injection sight over a video appointment, Dr. Bzoskie told him, 24 “You’ll be fine. It’s a result of the needle.” Id. at 4. Plaintiff alleges that Dr. Bzoskie did 25 not ask any questions relevant to his medical issue or performed any tests. Id. 26 Deliberate indifference to serious medical needs violates the Eighth Amendment’s 1 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 2 grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en 3 banc). A determination of a “deliberate indifference” claim involves an examination of 4 two elements: the seriousness of the prisoner’s medical need and the nature of the 5 defendant’s response to that need. Id. at 1059. Regarding the first element, a serious 6 medical need exists if the failure to treat a prisoner’s condition could result in further 7 significant injury or the “unnecessary and wanton infliction of pain.” Id. With regard to 8 the second element, a prison official is deliberately indifferent if he or she knows that a 9 prisoner faces a substantial risk of serious harm and disregards that risk by failing to take 10 reasonable steps to abate it. Farmer at 837. 11 Liberally construed, Plaintiff’s allegations are sufficient to state a cognizable Eighth 12 Amendment claim against Defendant Dr. Bzoskie for deliberate indifference to serious 13 medical needs. 14 However, Plaintiff’s allegations against Nurse Hakaki fail to establish that she acted 15 with deliberate indifference to serious medical needs. Rather, his allegations that she 16 administered the shot with “unnecessary force” that caused “unnecessary and wanton 17 infliction of pain” raise an excessive force claim rather than one involving inadequate 18 medical treatment. The core judicial inquiry for an excessive force claim is whether force 19 was applied in a good-faith effort to maintain or restore discipline, or maliciously and 20 sadistically to cause harm rather than with deliberate indifference. Hudson v. McMillian, 21 503 U.S. 1, 6-7 (1992); Whitley v. Albers, 475 U.S. 312, 320-21 (1986). Plaintiff’s 22 allegations, liberally construed, are sufficient to state an excessive force claim against 23 Nurse Hakaki for administering the vaccine shot maliciously and sadistically to cause 24 harm. Liberally construed, Plaintiff’s allegations are sufficient to state an excessive force 25 claim against Nurse Hakaki under the Eighth Amendment. 26 /// 1 CONCLUSION 2 For the foregoing reasons, the Court orders as follows: 3 1. This action shall proceed on the excessive force claim against Defendant 4 Nurse Hakaki and deliberate indifference to serious medical needs against Defendant Dr. 5 Bzoskie. The deliberate indifference claim against Nurse Hakaki is DISMISSED for 6 failure to state a claim. 7 2. Defendants Dr. Thomas Bzoskie and Nurse Hakaki shall be served at 8 Pelican Bay State Prison. 9 Service on the listed defendant(s) shall proceed under the California Department of 10 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 11 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 12 on CDCR via email the following documents: the operative complaint and any attachments 13 thereto, Dkt. No. 19, this order of service, and a CDCR Report of E-Service Waiver form. 14 The clerk also shall serve a copy of this order on the plaintiff. 15 No later than 40 days after service of this order via email on CDCR, CDCR shall 16 provide the court a completed CDCR Report of E-Service Waiver advising the court which 17 defendant(s) listed in this order will be waiving service of process without the need for 18 service by the United States Marshal Service (USMS) and which defendant(s) decline to 19 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 20 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 21 days, shall file with the court a waiver of service of process for the defendant(s) who are 22 waiving service. 23 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 24 each defendant who has not waived service according to the CDCR Report of E-Service 25 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 26 forms and copies of this order, the summons and the operative complaint for service upon 1 copy of the CDCR Report of E-Service Waiver. 2 3.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 MINH CONG DO, 11 Case No. 23-cv-05906 BLF (PR) Plaintiff, 12 ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE 13 v. DISPOSITIVE MOTION OR NOTICE REGARDING SUCH 14 CA CORRECTIONS HEALTH CARE MOTION; INSTRUCTIONS TO CLERK SERVICES, et al., 15 Defendants. 16 17 18 Plaintiff, a state inmate at Calipatria State Prison, filed the instant pro se civil rights 19 action pursuant to 42 U.S.C. § 1983 against medical staff at Pelican Bay State Prison 20 (“PBSP”) where he was formerly housed. Dkt. No. 8. The Court dismissed the complaint 21 with leave to amend to correct various deficiencies. Dkt. No. 12. Plaintiff filed an 22 amended complaint. Dkt. No. 19. 23 24 DISCUSSION 25 A. Standard of Review 26 A federal court must conduct a preliminary screening in any case in which a 27 prisoner seeks redress from a governmental entity or officer or employee of a 1 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 2 upon which relief may be granted or seek monetary relief from a defendant who is immune 3 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 4 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 6 elements: (1) that a right secured by the Constitution or laws of the United States was 7 violated, and (2) that the alleged violation was committed by a person acting under the 8 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 9 B. Plaintiff’s Claims 10 In the original complaint, Plaintiff alleged “medical malpractice, medical 11 negligence, and [i]nadequate medical care” by PBSP and contracted employees with the 12 California Corrections Health Care Services (“CCHCS”). Dkt. No. 8 at 2. The underlying 13 incident was a vaccine shot administered by Nurse Hakaki on March 29, 2023, which 14 allegedly caused nerve damage in his left arm leading to loss of partial mobility. Id. at 5. 15 The Court found the allegations were insufficient to state a deliberate indifference claim 16 under the Eighth Amendment and granted leave to amend to attempt to correct this 17 deficiency. Dkt. No. 12. 18 Plaintiff’s amended complaint names only Nurse Hakaki and Dr. Thomas Bzoskie 19 as defendants and claims they acted with deliberate indifference to serious medical needs. 20 Dkt. No. 19. Plaintiff alleges that when Nurse Hakaki administered the shot, she “thrust 21 the needle in Plaintiff’s left arm with unnecessary force causing a[n] unnecessary[] and 22 wanton[] infliction of pain.” Id. at 3. When Plaintiff later complained of pain, numbness, 23 and loss of mobility in the injection sight over a video appointment, Dr. Bzoskie told him, 24 “You’ll be fine. It’s a result of the needle.” Id. at 4. Plaintiff alleges that Dr. Bzoskie did 25 not ask any questions relevant to his medical issue or performed any tests. Id. 26 Deliberate indifference to serious medical needs violates the Eighth Amendment’s 1 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 2 grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en 3 banc). A determination of a “deliberate indifference” claim involves an examination of 4 two elements: the seriousness of the prisoner’s medical need and the nature of the 5 defendant’s response to that need. Id. at 1059. Regarding the first element, a serious 6 medical need exists if the failure to treat a prisoner’s condition could result in further 7 significant injury or the “unnecessary and wanton infliction of pain.” Id. With regard to 8 the second element, a prison official is deliberately indifferent if he or she knows that a 9 prisoner faces a substantial risk of serious harm and disregards that risk by failing to take 10 reasonable steps to abate it. Farmer at 837. 11 Liberally construed, Plaintiff’s allegations are sufficient to state a cognizable Eighth 12 Amendment claim against Defendant Dr. Bzoskie for deliberate indifference to serious 13 medical needs. 14 However, Plaintiff’s allegations against Nurse Hakaki fail to establish that she acted 15 with deliberate indifference to serious medical needs. Rather, his allegations that she 16 administered the shot with “unnecessary force” that caused “unnecessary and wanton 17 infliction of pain” raise an excessive force claim rather than one involving inadequate 18 medical treatment. The core judicial inquiry for an excessive force claim is whether force 19 was applied in a good-faith effort to maintain or restore discipline, or maliciously and 20 sadistically to cause harm rather than with deliberate indifference. Hudson v. McMillian, 21 503 U.S. 1, 6-7 (1992); Whitley v. Albers, 475 U.S. 312, 320-21 (1986). Plaintiff’s 22 allegations, liberally construed, are sufficient to state an excessive force claim against 23 Nurse Hakaki for administering the vaccine shot maliciously and sadistically to cause 24 harm. Liberally construed, Plaintiff’s allegations are sufficient to state an excessive force 25 claim against Nurse Hakaki under the Eighth Amendment. 26 /// 1 CONCLUSION 2 For the foregoing reasons, the Court orders as follows: 3 1. This action shall proceed on the excessive force claim against Defendant 4 Nurse Hakaki and deliberate indifference to serious medical needs against Defendant Dr. 5 Bzoskie. The deliberate indifference claim against Nurse Hakaki is DISMISSED for 6 failure to state a claim. 7 2. Defendants Dr. Thomas Bzoskie and Nurse Hakaki shall be served at 8 Pelican Bay State Prison. 9 Service on the listed defendant(s) shall proceed under the California Department of 10 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 11 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 12 on CDCR via email the following documents: the operative complaint and any attachments 13 thereto, Dkt. No. 19, this order of service, and a CDCR Report of E-Service Waiver form. 14 The clerk also shall serve a copy of this order on the plaintiff. 15 No later than 40 days after service of this order via email on CDCR, CDCR shall 16 provide the court a completed CDCR Report of E-Service Waiver advising the court which 17 defendant(s) listed in this order will be waiving service of process without the need for 18 service by the United States Marshal Service (USMS) and which defendant(s) decline to 19 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 20 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 21 days, shall file with the court a waiver of service of process for the defendant(s) who are 22 waiving service. 23 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 24 each defendant who has not waived service according to the CDCR Report of E-Service 25 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 26 forms and copies of this order, the summons and the operative complaint for service upon 1 copy of the CDCR Report of E-Service Waiver. 2 3. No later than ninety-one (91) days from the date this order is filed, 3 Defendants shall file a motion for summary judgment or other dispositive motion with 4 respect to the claims in the complaint found to be cognizable above. 5 a. Any motion for summary judgment shall be supported by adequate 6 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 7 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 8 qualified immunity found, if material facts are in dispute. If any Defendant is of the 9 opinion that this case cannot be resolved by summary judgment, he shall so inform the 10 Court prior to the date the summary judgment motion is due. 11 b. In the event Defendants file a motion for summary judgment, the 12 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 13 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 14 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 15 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 16 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 17 motion is filed. 18 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 19 Celotex Corp. v. Catrett, 47 U.S. 317 (1986) (holding party opposing summary judgment 20 must come forward with evidence showing triable issues of material fact on every essential 21 element of his claim). Plaintiff is cautioned that failure to file an opposition to 22 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 23 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 24 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 25 F.3d 651, 653 (9th Cir. 1994). 26 5. Defendants shall file a reply brief no later than fourteen (14) days after 1 6. The motion shall be deemed submitted as of the date the reply brief is due. 2 || No hearing will be held on the motion unless the Court so orders at a later date. 3 7. All communications by the Plaintiff with the Court must be served on 4 || Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 5 || copy of the document to Defendants or Defendants’ counsel. 6 8. Discovery may be taken in accordance with the Federal Rules of Civil 7 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 8 || Rule 16-1 is required before the parties may conduct discovery. 9 9. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the 10 || court informed of any change of address and must comply with the court’s orders in a 11 || timely fashion. Failure to do so may result in the dismissal of this action for failure to 12 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). E 13 10. Extensions of time must be filed no later than the deadline sought to be S 14 || extended and must be accompanied by a showing of good cause. 3 15 IT IS SO ORDERED. 16 Dated: — October 3, 2024 Ais / Waa BETH LABSON FREEMAN = "7 United States District Judge Zz 18 19 20 21 22 23 24 25 Order of Service PRO-SE\BLF\CR.23\05906Do_ sve 26 27