1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 LEONARD JAMES FOX, 11 Case No. 18-07221 BLF (PR) Plaintiff, 12 ORDER OF PARTIAL DISMISSAL AND OF SERVICE; DIRECTING v. 13 DEFENDANTS TO FILE DISPOSITIVE MOTION OR 14 T. URIBE, et al., NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO 15 Defendants. CLERK 16 17 18 Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 19 42 U.S.C. § 1983 against officers and medical personnel at Salinas Valley State Prison 20 (“SVSP”). The Court dismissed the complaint with leave to amend to correct several 21 deficiencies. (Docket No. 8.) Plaintiff has filed an amended complaint. (Docket No. 15.) 22 23 DISCUSSION 24 A. Standard of Review 25 A federal court must conduct a preliminary screening in any case in which a 26 prisoner seeks redress from a governmental entity or officer or employee of a 27 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 1 upon which relief may be granted or seek monetary relief from a defendant who is immune 2 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 3 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 4 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 8 B. Plaintiff’s Claims 9 Plaintiff claims that he suffered a second degree burn on his left foot on November 10 10, 2016. (Am. Compl. at 4.) Upon his return from the hospital, Plaintiff was provided 11 with crutches and instructed to return to his upstairs housing assignment. (Id. at 4-5.) 12 Plaintiff claims that from November 11 through 14, 2016, he notified Defendants Sullivan, 13 Fu, Tuvera, and Uribe that he was in pain and that it was very difficult to walk up and 14 down the stairs in his condition and crutches, but that defendants “purposefully and 15 intentionally ignored Plaintiff and acted with a culpable state of mind to a foreseeable risk 16 of Plaintiff’s personal safety and disregarded such risks by refusing to take reasonable 17 measures to abate such risk.” (Id. at 5.) Then on November 15, 2016, Plaintiff fell down 18 the stairs and had to be taken to the hospital to receive treatment for back contusions and 19 pain; on his return, he was issued a “lower tier lower bunk accommodation” by medical 20 staff. (Id. at 5-6.) From then until November 30, 2016, Plaintiff suffered increased pain in 21 his back and was taken to the prison’s treatment center for extreme pain. (Id. at 6.) On 22 December 9, 2016, Plaintiff received a medical order for physical therapy which did not 23 start until April 2017. (Id.) The physical therapist informed Plaintiff that the injuries to 24 his nerves and back could be life time and requested Plaintiff be examined by a doctor due 25 to Plaintiff’s inability to physically perform during the physical therapy session. (Id.) 26 Plaintiff claims that he had been prescribed pain medications by medical care providers, 1 prescribed pain medications for his injuries and pain” by “intentionally discontinuing” the 2 medications, “despite Plaintiff informing Defendant Nguyen that he was in pain as a result 3 of his injury to his foot and fall down the stairs.” (Id. at 7.) Plaintiff claims that Defendant 4 Nguyen’s decision was “medically unreasonable considering the circumstances” and that it 5 was “chose[n] in conscious disregard to a excessive risk to Plaintiff’s health and personal 6 safety.” (Id.) Plaintiff claims he notified Defendants Kumar and Brizendine that he was 7 in extreme pain and had difficulty walking up and down the stairs with crutches, but they 8 failed to respond. (Id. at 8.) Based on the foregoing, Plaintiff claims deliberate 9 indifference to serious medical needs and deliberate indifference to personal safety. (Id. at 10 8-9.) He seeks damages. (Id. at 14.) 11 1. Improper Joinder 12 Plaintiff raises two claims: (1) the claim that he was exposed to unsafe prison 13 conditions against Defendants Sullivan, Fu, Tuvera, and Uribe which resulted in his fall 14 down the stairs on November 15, 2016; and (2) deliberate indifference to serious medical 15 needs against Defendants Nguyen, Kumar, and Brizendine based on Defendant Nguyen’s 16 discontinuation of Plaintiff’s pain medication on May 11, 2017. 17 “A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, 18 as independent or alternative claims, as many claims as it has against an opposing party.” 19 Fed. R. Civ. P. 18(a). Accordingly, “multiple claims against a single party are fine, but 20 Claim A against Defendant 1 should not be joined with unrelated Claim B against 21 Defendant 2.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). “Unrelated claims 22 against different defendants belong in different suits,” not only to prevent the sort of 23 “morass” that a multi-claim, multi-defendant suit can produce, “but also to ensure that 24 prisoners pay the required filing fees – for the Prison Litigation Reform Act limits to 3 the 25 number of frivolous suits or appeals that any prisoner may file without prepayment of 26 required fees.” Id. (citing 28 U.S.C. § 1915(g)). 1 relief is asserted against them jointly, severally, or in the alternative with respect to or 2 arising out of the same transaction, occurrence, or series of transactions or occurrences; 3 and any question of law or fact common to all defendants will arise in the action.” Fed. R. 4 Civ. P. 20(a)(2). 5 In its screening order, the Court advised Plaintiff that his deliberate indifference to 6 medical needs claim was improperly joined to his claim for deliberate indifference to 7 safety needs because the claims are unrelated, and each involve different defendants. 8 (Docket No. 8 at 4.) The Court also found that the alleged facts were insufficient to 9 support either claim. (Id. at 4-6.) Plaintiff was directed to file an amended complaint “to 10 state sufficient facts to state either a deliberate indifference to safety claim or deliberate 11 indifference to medical needs.” (Id. at 7, original emphasis.) Plaintiff has clearly failed to 12 comply with this instruction since the amended complaint again attempts to raise the same 13 two unrelated claims arising out of two separate events against two different groups of 14 Defendants. The Court will therefore strike the safety claim because Plaintiff’s allegations 15 are again insufficient to support such a claim against the named Defendants as explained 16 below. 17 2.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 LEONARD JAMES FOX, 11 Case No. 18-07221 BLF (PR) Plaintiff, 12 ORDER OF PARTIAL DISMISSAL AND OF SERVICE; DIRECTING v. 13 DEFENDANTS TO FILE DISPOSITIVE MOTION OR 14 T. URIBE, et al., NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO 15 Defendants. CLERK 16 17 18 Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 19 42 U.S.C. § 1983 against officers and medical personnel at Salinas Valley State Prison 20 (“SVSP”). The Court dismissed the complaint with leave to amend to correct several 21 deficiencies. (Docket No. 8.) Plaintiff has filed an amended complaint. (Docket No. 15.) 22 23 DISCUSSION 24 A. Standard of Review 25 A federal court must conduct a preliminary screening in any case in which a 26 prisoner seeks redress from a governmental entity or officer or employee of a 27 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 1 upon which relief may be granted or seek monetary relief from a defendant who is immune 2 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 3 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 4 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 8 B. Plaintiff’s Claims 9 Plaintiff claims that he suffered a second degree burn on his left foot on November 10 10, 2016. (Am. Compl. at 4.) Upon his return from the hospital, Plaintiff was provided 11 with crutches and instructed to return to his upstairs housing assignment. (Id. at 4-5.) 12 Plaintiff claims that from November 11 through 14, 2016, he notified Defendants Sullivan, 13 Fu, Tuvera, and Uribe that he was in pain and that it was very difficult to walk up and 14 down the stairs in his condition and crutches, but that defendants “purposefully and 15 intentionally ignored Plaintiff and acted with a culpable state of mind to a foreseeable risk 16 of Plaintiff’s personal safety and disregarded such risks by refusing to take reasonable 17 measures to abate such risk.” (Id. at 5.) Then on November 15, 2016, Plaintiff fell down 18 the stairs and had to be taken to the hospital to receive treatment for back contusions and 19 pain; on his return, he was issued a “lower tier lower bunk accommodation” by medical 20 staff. (Id. at 5-6.) From then until November 30, 2016, Plaintiff suffered increased pain in 21 his back and was taken to the prison’s treatment center for extreme pain. (Id. at 6.) On 22 December 9, 2016, Plaintiff received a medical order for physical therapy which did not 23 start until April 2017. (Id.) The physical therapist informed Plaintiff that the injuries to 24 his nerves and back could be life time and requested Plaintiff be examined by a doctor due 25 to Plaintiff’s inability to physically perform during the physical therapy session. (Id.) 26 Plaintiff claims that he had been prescribed pain medications by medical care providers, 1 prescribed pain medications for his injuries and pain” by “intentionally discontinuing” the 2 medications, “despite Plaintiff informing Defendant Nguyen that he was in pain as a result 3 of his injury to his foot and fall down the stairs.” (Id. at 7.) Plaintiff claims that Defendant 4 Nguyen’s decision was “medically unreasonable considering the circumstances” and that it 5 was “chose[n] in conscious disregard to a excessive risk to Plaintiff’s health and personal 6 safety.” (Id.) Plaintiff claims he notified Defendants Kumar and Brizendine that he was 7 in extreme pain and had difficulty walking up and down the stairs with crutches, but they 8 failed to respond. (Id. at 8.) Based on the foregoing, Plaintiff claims deliberate 9 indifference to serious medical needs and deliberate indifference to personal safety. (Id. at 10 8-9.) He seeks damages. (Id. at 14.) 11 1. Improper Joinder 12 Plaintiff raises two claims: (1) the claim that he was exposed to unsafe prison 13 conditions against Defendants Sullivan, Fu, Tuvera, and Uribe which resulted in his fall 14 down the stairs on November 15, 2016; and (2) deliberate indifference to serious medical 15 needs against Defendants Nguyen, Kumar, and Brizendine based on Defendant Nguyen’s 16 discontinuation of Plaintiff’s pain medication on May 11, 2017. 17 “A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, 18 as independent or alternative claims, as many claims as it has against an opposing party.” 19 Fed. R. Civ. P. 18(a). Accordingly, “multiple claims against a single party are fine, but 20 Claim A against Defendant 1 should not be joined with unrelated Claim B against 21 Defendant 2.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). “Unrelated claims 22 against different defendants belong in different suits,” not only to prevent the sort of 23 “morass” that a multi-claim, multi-defendant suit can produce, “but also to ensure that 24 prisoners pay the required filing fees – for the Prison Litigation Reform Act limits to 3 the 25 number of frivolous suits or appeals that any prisoner may file without prepayment of 26 required fees.” Id. (citing 28 U.S.C. § 1915(g)). 1 relief is asserted against them jointly, severally, or in the alternative with respect to or 2 arising out of the same transaction, occurrence, or series of transactions or occurrences; 3 and any question of law or fact common to all defendants will arise in the action.” Fed. R. 4 Civ. P. 20(a)(2). 5 In its screening order, the Court advised Plaintiff that his deliberate indifference to 6 medical needs claim was improperly joined to his claim for deliberate indifference to 7 safety needs because the claims are unrelated, and each involve different defendants. 8 (Docket No. 8 at 4.) The Court also found that the alleged facts were insufficient to 9 support either claim. (Id. at 4-6.) Plaintiff was directed to file an amended complaint “to 10 state sufficient facts to state either a deliberate indifference to safety claim or deliberate 11 indifference to medical needs.” (Id. at 7, original emphasis.) Plaintiff has clearly failed to 12 comply with this instruction since the amended complaint again attempts to raise the same 13 two unrelated claims arising out of two separate events against two different groups of 14 Defendants. The Court will therefore strike the safety claim because Plaintiff’s allegations 15 are again insufficient to support such a claim against the named Defendants as explained 16 below. 17 2. Deliberate Indifference to Safety 18 Plaintiff’s safety claim is based on the single factual allegation that from November 19 11 through 14, 2016, he notified Defendants Sullivan, Fu, Tuvera, and Uribe that he was in 20 pain (from the foot burn) and that it was very difficult to walk up and down the stairs in his 21 condition and crutches, but that defendants “purposefully and intentionally ignored 22 Plaintiff and acted with a culpable state of mind to a foreseeable risk of Plaintiff’s personal 23 safety and disregarded such risks by refusing to take reasonable measures to abate such 24 risk.” (Am. Compl. at 5.) 25 The treatment a prisoner receives in prison and the conditions under which he is 26 confined are subject to scrutiny under the Eighth Amendment. See Helling v. McKinney, 1 requirements are met: (1) the deprivation alleged must be, objectively, sufficiently serious, 2 Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 3 (1991)), and (2) the prison official possesses a sufficiently culpable state of mind, id. 4 (citing Wilson, 501 U.S. at 297). The requisite state of mind to establish an Eighth 5 Amendment violation depends on the nature of the claim. In prison-conditions cases, the 6 necessary state of mind is one of “deliberate indifference.” See, e.g., Farmer, 511 U.S. at 7 834 (inmate safety); Wilson, 501 U.S. at 302-03 (general conditions of confinement). 8 Neither negligence nor gross negligence will constitute deliberate indifference. See 9 Farmer, 511 U.S. at 835-37 & n.4; see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) 10 (establishing that deliberate indifference requires more than negligence). A prison official 11 cannot be held liable under the Eighth Amendment for denying an inmate humane 12 conditions of confinement unless the standard for criminal recklessness is met, i.e., the 13 official knows of and disregards an excessive risk to inmate health or safety. See Farmer, 14 511 U.S. at 837. The official must both be aware of facts from which the inference could 15 be drawn that a substantial risk of serious harm exists, and he must also draw the inference. 16 See id. 17 Plaintiff was advised in the Court’s initial screening order of the original complaint 18 that he had failed to allege “sufficient facts showing that [Defendants] had the requisite 19 state of mind, i.e., that they knew of and disregarded an excessive risk to inmate safety.” 20 (Docket No. 8 at 4.) The amended complaint fails to correct this deficiency as his sole 21 allegation against Defendants Sullivan, Fu, Tuvera, and Uribe is based on a single sentence 22 that they “purposefully and intentionally ignored Plaintiff and acted with a culpable state 23 of mind to a foreseeable risk of Plaintiff’s personal safety and disregarded such risks by 24 refusing to take reasonable measures to abate such risk.” (Am. Compl. at 5.) This 25 allegation is conclusory and not supported by any other factual allegations regarding each 26 individual Defendant’s specific knowledge of Plaintiff’s risky circumstances and 1 dismissed for failure to state a claim. 2 3. Deliberate Indifference to Medical Needs 3 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 4 Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble, 5 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), 6 overruled in part on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 7 1136 (9th Cir. 1997) (en banc). A determination of “deliberate indifference” involves an 8 examination of two elements: the seriousness of the prisoner’s medical need and the nature 9 of the defendant’s response to that need. See McGuckin, 974 F.2d at 1059. 10 A “serious” medical need exists if the failure to treat a prisoner's condition could 11 result in further significant injury or the “unnecessary and wanton infliction of pain.” 12 McGuckin, 974 F.2d at 1059 (citing Estelle, 429 U.S. at 104). A prison official is 13 deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm 14 and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 15 511 U.S. 825, 837 (1994). The prison official must not only “be aware of facts from which 16 the inference could be drawn that a substantial risk of serious harm exists,” but he “must 17 also draw the inference.” Id. In order for deliberate indifference to be established, 18 therefore, there must be a purposeful act or failure to act on the part of the defendant and 19 resulting harm. See McGuckin, 974 F.2d at 1060. 20 Here, Plaintiff claims that Defendant Nguyen cancelled his pain medication in a 21 conscious disregard to an excessive risk to Plaintiff’s health because he did so despite 22 knowing that Plaintiff continued to be in pain. (Am. Compl. at 7.) Assuming Plaintiff’s 23 condition was “serious,” Plaintiff’s allegations are sufficient to support the claim that 24 Defendant Nguyen knew of a risk of serious harm to Plaintiff and yet disregarded that risk 25 by discontinuing his pain medication. 26 Plaintiff claims that Defendants Kumar and Brizendine were notified that he was in 1 that they failed to respond. (Am. Compl. at 8.) Liberally construed, the Court finds 2 Plaintiff states a claim based on supervisor liability against Defendants Kumar and 3 Brizendine based on Defendant Nguyen’s wrongful conduct. See Starr v. Baca, 652 F.3d 4 1202, 1208 (9th Cir. 2011; Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 2018). 5 6 CONCLUSION 7 For the reasons state above, the Court orders as follows: 8 1. Plaintiff’s deliberate indifference to safety claim is DISMISSED with 9 prejudice for failure to state a claim. The Clerk shall terminate Defendants P. Sullivan, 10 Law Fu, Dr. F. Tuvera, and Tereasa Uribe from this action since the claim against them 11 has been dismissed. 12 2. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 13 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy 14 of the amended complaint, (Docket No. 15), all attachments thereto, and a copy of this 15 order upon Defendants Dr. Nguyen, Dr. K. Kumar, and Dr. B. Brizendine at the 16 Salinas Valley State Prison (P.O. Box 1020, Soledad, CA 93960-1020). The Clerk shall 17 also mail a copy of this Order to Plaintiff. 18 3. Defendants are cautioned that Rule 4 of the Federal Rules of Civil 19 Procedure requires them to cooperate in saving unnecessary costs of service of the 20 summons and the complaint. Pursuant to Rule 4, if Defendants, after being notified of this 21 action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail 22 to do so, they will be required to bear the cost of such service unless good cause shown for 23 their failure to sign and return the waiver form. If service is waived, this action will 24 proceed as if Defendants had been served on the date that the waiver is filed, except that 25 pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer 26 before sixty (60) days from the day on which the request for waiver was sent. (This 1 necessary.) Defendants are asked to read the statement set forth at the foot of the waiver 2 form that more completely describes the duties of the parties with regard to waiver of 3 service of the summons. If service is waived after the date provided in the Notice but 4 before Defendants have been personally served, the Answer shall be due sixty (60) days 5 from the date on which the request for waiver was sent or twenty (20) days from the date 6 the waiver form is filed, whichever is later. 7 4. No later than ninety-one (91) days from the date this order is filed, 8 Defendants shall file a motion for summary judgment or other dispositive motion with 9 respect to the claims in the complaint found to be cognizable above. 10 a. Any motion for summary judgment shall be supported by adequate 11 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 12 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 13 qualified immunity found, if material facts are in dispute. If any Defendant is of the 14 opinion that this case cannot be resolved by summary judgment, he shall so inform the 15 Court prior to the date the summary judgment motion is due. 16 b. In the event Defendants file a motion for summary judgment, the 17 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 18 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 19 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 20 5. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 21 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 22 motion is filed. 23 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 24 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 25 must come forward with evidence showing triable issues of material fact on every essential 26 element of his claim). Plaintiff is cautioned that failure to file an opposition to 1 || the granting of the motion, and granting of judgment against Plaintiff without a trial. See 2 Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 3 || F.3d 651, 653 (9th Cir. 1994). 4 6. Defendants shall file a reply brief no later than fourteen (14) days after 5 || Plaintiff's opposition is filed. 6 7. The motion shall be deemed submitted as of the date the reply brief is due. 7 || No hearing will be held on the motion unless the Court so orders at a later date. 8 8. All communications by the Plaintiff with the Court must be served on 9 || Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 10 || copy of the document to Defendants or Defendants’ counsel. 11 9. Discovery may be taken in accordance with the Federal Rules of Civil 12 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 13 || Rule 16-1 is required before the parties may conduct discovery. S 14 10. □□□ is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 3 15 || court informed of any change of address and must comply with the court’s orders in a A 16 || timely fashion. Failure to do so may result in the dismissal of this action for failure to 3 17 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 18 11. Extensions of time must be filed no later than the deadline sought to be 19 || extended and must be accompanied by a showing of good cause. 20 IT ISSO ORDERED 1 Dated: _November 15, 2019_ hem bly hooman) 39 BETH LABSON FREEMAN United States District Judge 23 24 25 Order of Partial Dismissal and of Sve PRO-SE\BLF\CR.18\07221Fox_sve 26 27