Jones v. Pollard

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HENRY A. JONES, JR. Case No. 21cv162-MMA (RBM) CDCR #P-69574, 12 ORDER DENYING MOTION TO Plaintiff, 13 AMEND COMPLAINT AND v. DENYING AS MOOT REQUEST 14 FOR TEMPORARY WAIVER OF MARCUS POLLARD, Warden, 15 SERVICE FEES KATHLEEN ALLISON, Secretary,

16 and JOHN DOES 1-6, [Doc. No. 13] 17 Defendants. 18 19 On January 27, 2021, Henry A. Jones, Jr. (“Plaintiff”), a state prisoner incarcerated 20 at the R. J. Donovan Correctional Facility (“RJD”), in San Diego, California, proceeding 21 pro se, filed a civil rights complaint pursuant 42 U.S.C. § 1983 along with a motion to 22 proceed in forma pauperis. See Doc. Nos. 1-2. In the Complaint, Plaintiff claims 23 Defendants were deliberately indifferent to his health and safety in violation of the Eighth 24 Amendment based on their decision to use the mental health building at RJD, where 25 Plaintiff is housed, to quarantine inmates infected with Covid-19, thereby exposing him 26 to the virus, with which he was infected. See Doc. No. 1 at 3-4, 12-14. 27 On February 4, 2021, the Court denied Plaintiff’s motion to proceed in forma 28 pauperis on the basis that he has had at least three prior prisoner civil actions dismissed 1 on the grounds that they were frivolous, malicious, or failed to state a claim upon which 2 relief may be granted. See Doc. No. 5. Plaintiff subsequently paid the filing fee. See 3 Doc. No. 9. On June 16, 2021, the Court screened the Complaint pursuant to the 4 provisions of 28 U.S.C. § 1915A. See Doc. No. 10. That provision “mandates early 5 review ‘before docketing () or () as soon as practicable after docketing-for all complaints 6 ‘in which a prisoner seeks redress from a governmental entity or officer or employee of a 7 governmental entity.’” Chavez v. Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016) 8 (quoting 28 U.S.C. § 1915A(a)). The Court found the Complaint contains a plausible 9 claim sufficient to survive the “low threshold” set for sua sponte screening under 28 10 U.S.C. § 1915A(b) as to Defendants Warden Pollard and Secretary Allison. See Doc. No. 11 10 at 3. The Court directed the Clerk of Court to issue the Summons and informed 12 Plaintiff of the requirements for service of the Summons and Complaint on those two 13 Defendants. Id. at 4-5. 14 With respect to the John Doe Defendants, who Plaintiff identified in the Complaint 15 as “Doctor’s & Other’s” at RJD (Doc. No. 1 at 2), the Court found Plaintiff had set forth 16 only conclusory allegations against them and his Complaint therefore fails to “contain 17 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 18 face.” Doc. No. 10 at 4. The Court dismissed these Defendants without prejudice. Id. 19 Plaintiff has now filed a Motion for leave to amend his Complaint to attempt to 20 state a claim against one of the Doe Defendants. See Doc. No. 13. He identifies Dr. 21 Blaidale as one of the Doe Defendants identified in the original Complaint. Id. at 1. 22 However, the only allegations against this Defendant are that he “has and still continues 23 to retaliate against Plaintiff,” and “is responsible for my treatment, but in violation, [sic] 24 & continue to violate Plaintiff’s Eighth Amendment.” Id. 25 “The court should freely give leave [to amend] when justice so requires.” Fed. R. 26 Civ. P. 15(a)(2). However, leave to amend should be denied if the amendment would be 27 futile. Gordon v. City of Oakland, 627 F.3d 1092, 1094-95 (9th Cir. 2010). Plaintiff was 28 instructed in the Court’s previous Order that his allegations against the Doe Defendants 1 || failed to state a claim because they were either nonexistent or entirely conclusory. See 2 No. 10 at 4. The proffered allegations against Dr. Blaidale are also entirely 3 ||conclusory and do not state a claim under the standards set forth in the Court’s previous 4 || Order. See id. at 3. Under those standards, a prison official can be held liable only if he 5 || “knows of and disregards an excessive risk to inmate health and safety; the official must 6 || both be aware of facts from which the inference could be drawn that a substantial risk of 7 || serious harm exists, and he must also draw the inference.” /d. (quoting Farmer v. 8 || Brennan, 511 U.S. 825, 837 (1994)). There are no factual allegations to suggest Dr. 9 || Blaidale was aware of and deliberately disregarded a substantial risk to Plaintiffs health 10 |/or safety, and therefore it would be futile to allow Plaintiff to substitute Dr. Blaidale as a 11 || Doe Defendant. 12 Attached as an exhibit to Plaintiff's Motion to amend 1s a request for a temporary 13 || waiver of service fees dated June 27, 2021. See Doc. No. 13 at 9. Plaintiff indicates he 14 $1400 in his prison trust account and can pay the service fees, but the money will not 15 released for his use until July 1, 2021 and requests a temporary waiver of the service 16 || fees until the money is available. /d. The request is moot, as it appears the time to 17 release the funds has passed and Plaintiff no longer needs the temporary waiver. 18 Accordingly, the Court DENIES Plaintiff's Motion for leave to amend the 19 || Complaint and DENIES AS MOOT his request for temporary waiver of service fees. 20 || The Court reminds Plaintiff he must effectuate personal service upon Defendants Warden 21 || Pollard and Secretary Allison within 90 days of the Court’s June 16, 2021 Order and file 22 || proof of that service pursuant to Rule 4(1) or file a waiver pursuant to Rule 4(d) within 23 || that time, or face dismissal for failure to prosecute pursuant to Rule 4(m). 24 IT IS SO ORDERED. 25 || DATE: July 12, 2021 Was , Ma _ ( / Vp, - 26 HON. MICHAEL M. ANELLO 7 United States District Judge 28 3 ee