The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: (1) DISMISSING DEFENDANTS GRAY AND DOES PURSUANT TO FED.R.CIV.P. 4(m); (2) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [Doc. No. 46]; AND (3) DENYING PLAINTIFF'S CROSS- MOTION FOR SUMMARY JUDGMENT [Doc. No. 49]
Currently before the Court is a Motion for Summary Judgment filed by Defendant Santiago [Doc. No. 46] pursuant to FED.R.CIV.P. 56 and Plaintiff's Cross-Motion for Summary Judgment [Doc No. 49].
This matter was initially filed by Plaintiff in the Eastern District of California. On December 11, 2007, United States Magistrate Judge Dennis Beck found that the claims alleged in Plaintiff's Complaint arose in San Diego and thus, transferred this matter to the Southern District of California. On February 26, 2008, this Court granted Plaintiff's Motion to Proceed in forma pauperis ("IFP") and found that Plaintiff's Complaint survived the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Therefore, a summons on the Amended Complaint was issued and the Court directed the U.S. Marshal to effect service of Plaintiff's Complaint on his behalf pursuant to FED.R.CIV.P. 4(c)(3) and 28 U.S.C. § 1915(d) [Doc. No. 4]. On June 23, 2008 Defendant Santiago filed his Answer [Doc. No. 8].*fn1 On March 1, 2010, Defendant Santiago filed his Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No. 46]. Plaintiff filed his own Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 on March 11, 2010 [Doc. No. 49]. Plaintiff later filed a "Memorandum of Facts and Contentions of Law" that the Court construes as his Opposition to Defendant's Motion [Doc. No. 51]. Defendant Santiago filed his Opposition to Plaintiff's Motion on April 13, 2010 [Doc. No. 58]. The Court has advised Plaintiff of his rights and obligations to oppose Defendants' Motion pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc)*fn2 [Doc. No. 45].
As an initial matter, the Court notes that Plaintiff has named Dr. Gray and John Does as Defendants in this matter. However, a review of the Court's docket indicates that Plaintiff has not effected service upon Dr. Gray nor has he identified or served any of the Doe Defendants. Because Plaintiff has failed to effect service of the summons and Complaint upon these purported Defendants, the Court has no personal jurisdiction over them and they are not considered parties to this action. See FED.R.CIV.P. 4(m); Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) ("In the absence of service of process (or waiver of service by the defendant)," under FED.R.CIV.P. 4, "a court ordinarily may not exercise power over a party the complaint names as a defendant." ); see also Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) ("Before a ... court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.").
Thus, Court DISMISSES Defendants Gray and John Does from this action for insufficient service and lack of personal jurisdiction. See FED.R.CIV.P. 4(m); Murphy Bros., 526 U.S. at 350; Omni Capital, 484 U.S. at 104.
On October 6, 1996, while Plaintiff was housed at the Richard J. Donovan Correctional Facility ("Donovan"), he took "the standard mandatory annual tuberculosis (T.B.) skin test." (Compl. at 8.) Because there was "no swelling or discoloration of the tested area," the result of the test was negative. (Id.) Three days later, "Medical Clinician Defendant John Doe #1 came to Plaintiff's cell" and diagnosed the test as positive for TB exposure. (Id.) Plaintiff asked John Doe #1 to re-evaluate the diagnosis because Plaintiff believed the result to be negative. (Id.) This request was rejected. (Id.)
On October 29, 1996, Plaintiff was taken to Dr. Gray for an examination and to begin a "T.B. exposure treatment plan." (Id. at 9.) Plaintiff explained to Dr. Gray that he had been misdiagnosed but Dr. Gray declined to retest Plaintiff while also informing Plaintiff that Plaintiff "was not qualified to challenge a Medical Clinician's tests readings." (Id.) Dr. Gray placed Plaintiff on a "six (6) month regime of Isoniazid (INH) and Pyridoxine (Vit. B6) for treatment of T.B. exposure." (Id.) Plaintiff was to take this medication twice daily for six months. (Id.)
As a result of taking this medication, Plaintiff became "extremely ill" causing "severe migraines, nausea, dizzy spells, stomach cramps and vomiting." (Id.) Two and a half months later, on December 11, 1996, Plaintiff informed Dr. Gray of these issues he was having and asked to stop taking these medications so that he could be retested for TB exposure. (Id. at 10.)
Dr. Gray refused and told Plaintiff that his reactions to the medication were "typical reactions to INH." (Id.) Moreover, if Plaintiff stopped taking this medication, Dr. Gray informed him that he would have to restart the regimen all over again for the next six months. (Id.) Plaintiff allege that he "reluctantly continued to take the medication as prescribed" which caused him to continue to suffer from the same symptoms. (Id.)
Plaintiff was later transferred to Calipatria State prison ("CAL") where he was seen by Dr. Santiago on January 9, 1997. (Id.) Plaintiff informed Dr. Santiago that he was "misdiagnosed and that he needed to be retested and taken of this medication." (Id. at 11.) Plaintiff also informed Dr. Santiago that the medication "was making him extremely ill, causing severe migraines, nausea, dizzy spells, stomach cramps and vomiting." (Id.) Dr. Santiago "refused Plaintiff's plead" and informed him that it was against "CDC policy to retest prisoners with positive test readings." (Id.) Thus, Dr. Santiago ordered Plaintiff to continue his medication and told him that his symptoms were a "typical reaction to INH." (Id.) On May 15, 1997, Plaintiff completed his six month treatment. (Id.)
On April 20, 2006, Plaintiff had a liver biopsy which "indicated that the 1996-1997 INH treatments had damaged Plaintiff's liver." (Id. at 11-12.) Plaintiff was retested for TB exposure on April 2, 2007 and the test results came back negative ...