Hill v. Mann

Opinion

3 CYMEYON V. HILL, 4 Case No. 24-cv-03090-YGR (PR) Plaintiff, 5 ORDER OF PARTIAL DISMISSAL v. AND SERVICE 6 DR. MANN, et al., 7 Defendants. 8

10 Plaintiff, a civil detainee currently being held in custody at Napa State Hospital (“NSH”), 11 filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Venue is proper because the 12 events giving rise to the claim is alleged to have occurred in NSH, which is located in this judicial 13 district. See 28 U.S.C. § 1391(b). Plaintiff’s motion for leave to proceed in forma pauperis will 14 be granted in a separate order. 15 Plaintiff has named as defendants the following members of the medical staff at NSH: Dr. 16 Mann; Dr. Terique; and “Medical Staff Jennie Clay.”1 Dkt. 1 at 1-2.2 Plaintiff seeks punitive 17 damages. Id. at 3. 19 A. Standard of Review 20 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 21 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 22 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 23 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 24 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se 25 1 Because plaintiff’s penmanship is difficult to decipher, the Clerk of the Court incorrectly 26 listed Jennie Clay as “Fennie Clay.” However, the correct spelling of this defendant’s first name is “Jennie.” See Dkt. 1 at 1-3. 27 1 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 2 Cir. 1988). 3 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 4 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 5 the alleged violation was committed by a person acting under the color of state law. West v. 6 Atkins, 487 U.S. 42, 48 (1988). 7 B. Legal Claims 8 1. Claims Against Defendants Terique and Clay 9 Plaintiff, who was civilly committed in 1997 following a plea of not guilty by reason of 10 insanity, alleges the following took place on May 9, 2024. Dkt. 1 at 3. Plaintiff claims that while 11 he was in “Unit T8,” defendant Mann, a psychiatrist at NSH, informed plaintiff that defendants 12 Terique and Clay told defendant Mann that “plaintiff needed to be punished for filing lawsuits and 13 that defendant [Mann] needed to place plaintiff on medication as punishment.” Id. 14 To state a claim for First Amendment retaliation against a government official, a plaintiff 15 must demonstrate that (1) he engaged in constitutionally protected activity; (2) as a result, he was 16 subjected to adverse action by the defendant that would chill a person of ordinary firmness from 17 continuing to engage in the protected activity; and (3) there was a substantial causal relationship 18 between the constitutionally protected activity and the adverse action. Mulligan v. Nichols, 835 19 F.3d 983, 988 (9th Cir. 2016). Plaintiff has stated a cognizable First Amendment retaliation claim 20 against defendants Terique and Clay 21 To the extent that plaintiff’s complaint states a claim against defendants Terique and Clay 22 of verbal harassment and threats, such a claim is DISMISSED. See Freeman v. Arpaio, 125 F.3d 23 732, 738 (9th Cir. 1997) (Allegations of verbal harassment and abuse fail to state a claim 24 cognizable under 42 U.S.C. § 1983.); see also Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) 25 (mere threat does not constitute constitutional wrong, nor do allegations that naked threat was for 26 purpose of denying access to courts compel contrary result). 27 2. Claim Against Defendant Mann 1 of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 2 F.2d 1050, 1059 (9th Cir. 1992); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986). A 3 determination of “deliberate indifference” involves an examination of two elements: the 4 seriousness of the prisoner’s medical need and the nature of the defendant’s response to that need. 5 McGuckin, 974 F.2d at 1059. A “serious” medical need exists if the failure to treat a prisoner’s 6 condition could result in further significant injury or the “unnecessary and wanton infliction of 7 pain.” Id. (citing Estelle v. Gamble, 429 U.S. at 104). Deliberate indifference may be established 8 if there is a purposeful act or failure to act on the part of the defendant. McGuckin, 974 F.2d at 9 1060. It is well-known that a claim of medical malpractice or negligence is insufficient to make 10 out a violation of the Eighth Amendment. See Toguchi v. Chung, 391 F.3d 1051, 1060-61 (9th 11 Cir. 2004). 12 Plaintiff alleges that also on May 9, 2024, defendant Mann “continues to keep plaintiff” on 13 a psychiatric medication called “Risperdal,”3 which caused plaintiff to suffer “stomach pain[,] 14 severe headaches[,] chest pain[,] vomiting, [and] diahera [sic].” Dkt. 1 at 3 (brackets added). 15 Plaintiff claims he was then put on Lamictal,4 “without reason.” Id. As mentioned above, 16 plaintiff claims that defendant Mann was instructed by defendants Terique and Clay to “place 17 plaintiff on medication as punishment.” Id. Liberally construed, plaintiff’s complaint states a 18 cognizable Eighth Amendment claim against defendant Mann. 20 For the foregoing reasons, the Court orders as follows: 21 1. Plaintiff has stated a cognizable First Amendment retaliation claim against 22 3 Plaintiff indicates that the medication prescribed by Dr. Mann on May 9, 2024 was 23 called, “Resperadol,” which seems to be incorrectly spelled Dkt. 1 at 3. Risperidone is the generic name of “Risperdal,” which is “used to treat certain mental/mood disorders (such as 24 schizophrenia, bipolar disorder, irritability associated with autistic disorder).” See https://www.webmd.com/drugs/2/drug-9846/risperdal-oral/details (last visited October 7, 2024). 25

4 Plaintiff indicates that the medication next prescribed by Dr. Mann on May 9, 2024 was 26 called, “Lemeiktal,” which also may be incorrectly spelled. Dkt. 1 at 3. Lamotrigine is the generic name of called “Lamictal,” which is used alone or with other medications to 27 prevent/control seizures and also to help prevent the extreme mood swings of bipolar disorder in 1 defendants Terique and Clay. He has also stated a cognizable Eighth Amendment claim against 2 defendant Mann. 3 2. Plaintiff’s claim against defendants Terique and Clay of verbal harassment and 4 threats is DISMISSED. 5 3. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of 6 Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint 7 and all attachments thereto (dkt. 1), and a copy of this Order to the following defendants: Dr. 8 Mann; Dr. Terique; and “Medical Staff Jennie Clay” at Napa State Hospital, ATTN: 9 Litigation Coordinator, 2100 Napa Vallejo Hwy, Napa, CA 94558. The Clerk also shall mail a 10 copy of the complaint and a copy of this Order to the State Attorney General’s Office in San 11 Francisco. Additionally, the Clerk shall mail a copy of this Order to plaintiff. 12 4. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 13 requires them to cooperate in saving unnecessary costs of service of the summons and complaint. 14 Pursuant to Rule 4, if defendants, after being notified of this action and asked by the Court, on 15 behalf of plaintiff, to waive service of the summons, fail to do so, defendants will be required to 16 bear the cost of such service unless good cause be shown for the failure to sign and return the 17 waiver form. If service is waived, this action will proceed as if defendants had been served on the 18 date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), defendants will not be 19 required to serve and file an answer before sixty (60) days from the date on which the request for 20 waiver was sent. (This allows a longer time to respond than would be required if formal service of 21 summons is necessary.) Defendants are asked to read the statement set forth at the foot of the 22 waiver form that more completely describes the duties of the parties with regard to waiver of 23 service of the summons. If service is waived after the date provided in the Notice but before 24 defendants personally have been served, the Answer shall be due sixty (60) days from the date on 25 which the request for waiver was sent or twenty (20) days from the date the waiver form is filed, 26 whichever is later. 27 5. Defendants shall answer the complaint in accordance with the Federal Rules of 1 a. No later than sixty (60) days from the date their answer is due, defendants 2 shall file a motion for summary judgment or other dispositive motion. The motion must be 3 supported by adequate factual documentation, must conform in all respects to Federal Rule of 4 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from 5 the events at issue. A motion for summary judgment also must be accompanied by a Rand5 notice 6 so that plaintiff will have fair, timely and adequate notice of what is required of him in order to 7 oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out 8 in Rand must be served concurrently with motion for summary judgment). A motion to dismiss 9 for failure to exhaust available administrative remedies must be accompanied by a similar notice. 10 However, the Court notes that under the new law of the circuit, in the rare event that a failure to 11 exhaust is clear on the face of the complaint, defendants may move for dismissal under Rule 12 12(b)(6) as opposed to the previous practice of moving under an unenumerated Rule 12(b) motion. 13 Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (overruling Wyatt v. Terhune, 315 F.3d 1108, 14 1119 (9th Cir. 2003), which held that failure to exhaust available administrative remedies under 15 the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), should be raised by a defendant as an 16 unenumerated Rule 12(b) motion). Otherwise if a failure to exhaust is not clear on the face of the 17 complaint, defendants must produce evidence proving failure to exhaust in a motion for summary 18 judgment under Rule 56. Id. If undisputed evidence viewed in the light most favorable to plaintiff 19 shows a failure to exhaust, defendants are entitled to summary judgment under Rule 56. Id. But if 20 material facts are disputed, summary judgment should be denied and the district judge rather than 21 a jury should determine the facts in a preliminary proceeding. Id. at 1168. 22 If defendants are of the opinion that this case cannot be resolved by summary judgment, 23 defendants shall so inform the Court prior to the date the summary judgment motion is due. All 24 papers filed with the Court shall be promptly served on plaintiff. 25 b. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 26 and served on defendants no later than twenty-eight (28) days after the date on which defendants’ 27 1 motion is filed. 2 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of 3 the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 4 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 5 be granted when there is no genuine issue of material fact—that is, if there is no real dispute about 6 any fact that would affect the result of your case, the party who asked for summary judgment is 7 entitled to judgment as a matter of law, which will end your case. When a party you are suing 8 makes a motion for summary judgment that is properly supported by declarations (or other sworn 9 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 10 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 11 as provided in Rule 56(c), that contradicts the facts shown in the defendant’s declarations and 12 documents and show that there is a genuine issue of material fact for trial. If you do not submit 13 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 14 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 15 F.3d at 962-63. 16 Plaintiff also is advised that—in the rare event that defendants argue that the failure to 17 exhaust is clear on the face of the complaint—a motion to dismiss for failure to exhaust available 18 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 19 prejudice. To avoid dismissal, you have the right to present any evidence to show that you did 20 exhaust your available administrative remedies before coming to federal court. Such evidence 21 may include: (1) declarations, which are statements signed under penalty of perjury by you or 22 others who have personal knowledge of relevant matters; (2) authenticated documents— 23 documents accompanied by a declaration showing where they came from and why they are 24 authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements 25 in your complaint insofar as they were made under penalty of perjury and they show that you have 26 personal knowledge of the matters state therein. As mentioned above, in considering a motion to 27 dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment 1 issues of fact with regard to this portion of the case. Albino, 747 F.3d at 1168. 2 (The notices above do not excuse defendants’ obligation to serve similar notices again 3 concurrently with motions to dismiss for failure to exhaust available administrative remedies and 4 || motions for summary judgment. Woods, 684 F.3d at 935.) 5 d. Defendants shall file a reply brief no later than fourteen (14) days after the 6 || date plaintiffs opposition is filed. 7 e. The motion shall be deemed submitted as of the date the reply brief is due. 8 No hearing will be held on the motion unless the Court so orders at a later date. 9 6. Discovery may be taken in this action in accordance with the Federal Rules of Civil 10 || Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to defendants to depose 11 plaintiff and any other necessary witnesses confined in prison. 12 7. All communications by plaintiff with the Court must be served on defendants or 5 13 || defendants’ counsel, once counsel has been designated, by mailing a true copy of the document to 14 || them. 15 8. It is plaintiffs responsibility to prosecute this case. Plaintiff must keep the Court a 16 || informed of any change of address and must comply with the Court’s orders in a timely fashion. 3 17 Pursuant to Northern District Local Rule 3-11, a party proceeding pro se whose address changes 18 while an action is pending must promptly file a notice of change of address specifying the new 19 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 20 || directed to the pro se party by the Court has been returned to the Court as not deliverable, and 21 (2) the Court fails to receive within sixty days of this return a written communication from the pro 22 || se party indicating a current address. See L.R. 3-11(b). 23 9. Upon a showing of good cause, requests for a reasonable extension of time will be 24 || granted provided they are filed on or before the deadline they seek to extend. 26 Dated: October 9, 2024

JU YVONNE GONZAFEZ ROGERS 28 United States District Judge