Fox v. Uribe

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8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA

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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

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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.)

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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).

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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

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25 Order of Partial Dismissal and of Sve

PRO-SE\BLF\CR.18\07221Fox_sve

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