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Henry A. Jones v. Sahota

November 30, 2011



Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This action currently proceeds on plaintiff's first amended complaint, filed February 9, 2011. He has filed a second amended complaint which the court construes as a motion for leave to amend. He has also filed motions for injunctive relief, see Dckt. Nos. 45, 28, and 38, and has responded to the court's August 12, 2011 order directing him to provide additional instructions for service on defendant Suharto. Additionally, plaintiff has filed a motion for appointment of counsel, which is addressed in a separate order. See Dckt. No. 37. Finally, plaintiff has filed a motion "resigning" as a pro se litigant and a motion seeking to amend his allegations against defendant Vasquez. Dckt. Nos. 48, 49.

I. Motion "Resigning" as a Pro Se Litigant

On October 25, 2011, plaintiff filed a document styled "Motion Resigning as Pro Se Litigation for Medical Reasons." Dckt. No. 48. Plaintiff writes that he is unable to litigate this case. Id. at 1. Plaintiff discusses mental and physical illnesses, his reading disability, and his lack of understanding of court papers and procedures. Id. However, it does not appear from this filing that plaintiff seeks to voluntarily dismiss this case. (If plaintiff does wish to dismiss his case, he may do so under Fed. R. Civ. P. 41(a).)

Rather, plaintiff's filing appears to be argument is support of a motion for the appointment of counsel, which the court addresses in a separate order.

II. Motion to Amend the Complaint

On October 4, 2011, plaintiff filed a document titled "amended complaint and motion re: injunctive relief,"*fn1 containing new factual allegations against defendants Vasquez and Thompson, who have been dismissed from this action. See Dckt. Nos. 45, 40. The document does not contain all of the claims in plaintiff's first amended complaint against defendants Sahota, Jaffe, Venderstyme, Suharto, and Jaffe. See Dckt. No. 45. Plaintiff writes, "I ask the court to grant my amended complaint and amend Vasquez to the suit." Id. at 4. Additionally, on October 25, 2011, plaintiff filed a motion further amending his allegations against defendant Vasquez. Dckt. No. 49. The court construes plaintiff's filings as motions to amend his complaint.

Defendants oppose plaintiff's motion to amend, arguing that any amendment would be futile because defendants Vasquez and Thompson have already been dismissed from this action. See Dckt. Nos. 47, 40.

After a responsive pleading is filed, a party may amend its pleading only with the opposing party's written consent or the court's leave, which should be freely given "when justice so requires." Fed. R. Civ. P. 15(a); Amerisource Bergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) ("Rule 15(a) is very liberal and leave to amend 'shall be freely given when justice so requires.'"). However, courts "need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is futile." Id. Here, defendants had filed their responsive pleading before plaintiff filed his motion to amend. See Dckt. No. 42.

As noted above, plaintiff's proposed amended complaint does not contain all of the allegations in the operative complaint, but does contain new factual allegations against Vasquez and Thompson. Plaintiff's filing gives no indication that he seeks to voluntarily dismiss the claims in the operative complaint. Rather, it appears that he wishes to supplement rather than amend the operative complaint.

Plaintiff has not complied with Local Rule 220 (changed pleadings), which provides that "every pleading to which an amendment or supplement is permitted as a matter of right or has been allowed by court order shall be retyped and filed so that it is complete in itself without reference to the prior or superseded pleading." Local Rule 220; see Loux v. Thay, 375 F.2d 55, 57 (9th Cir. 1967). Any amendments to the complaint must comply with this rule. Accordingly, plaintiff's motion to amend his complaint is denied without prejudice.

III. Service Information for Defendant Suharto

On August 12, 2011, after the United States Marshal was unable to obtain a waiver of service for defendant Suharto because "Sac does not have an employee or contractor by that name" and the defendant's name was not listed in the CDC locator, the court directed plaintiff to provide additional instructions for serving defendant Suharto within 60 days. See Dckt. Nos. 29, 32.

On September 24, 2011, plaintiff submitted a completed USM-285 form for defendant "Sahota" instead of "Suharto" and attached a document which explains "Sahota" works at the California State Prison-Sacramento and advises that Linda Young, the litigation coordinator, can assist in locating and serving "Sahota." Dckt. No. 34. Plaintiff again listed "Warden Viga" as the person to serve at California State Prison-Sacramento ("CSP-Sac") with the summons and complaint for defendant "Sahota." This is the same person plaintiff previously listed for defendant Suharto. On October 4, 2011, plaintiff filed a document stating that he had sent back a summons form for "Suharto." See Dckt. No. 46.

Plaintiff has failed to provide additional instructions to serve defendant Suharto. However, it appears that there may be some confusion due to the similarity of defendants Suharto and Sahota's name. Defendant Sahota has been served; Suharto has not. See Dckt. No. 41. The court grants plaintiff one more chance to submit sufficient information to effect service on defendant Suharto.*fn2

IV. Motions for a Preliminary Injunction

Plaintiff has filed motions for injunctive relief requesting the court to order defendants to treat plaintiff's insomnia with insomnia medication. See Dckt. Nos. 21, 28, 45. On August 21, 2011, the court ordered defendants to respond to plaintiff's requests. Dckt. No. 31. Defendants filed a response on August 23, 2011 objecting to plaintiff's requests. Dckt. No. 33. On October 4, 2011, plaintiff filed a document entitled "objections to declaration of C. Paizis and motion for injunctive relief," which the court construes as a reply. Dckt. No. 38.

In support of his motions, plaintiff alleges he took sleep aid medication in federal prison and "on the streets," but when he was transferred to CDC in March 2005, he was told CDC does not treat insomnia. Dckt. No. 28 at 1; Dckt. No. 38 at 9. Plaintiff asserts he routinely files 602 appeals to request sleep aid medication but his requests have not been granted. Dckt. No. 21 at 1-2. Plaintiff argues that in retaliation for filing this lawsuit, his psychiatrist, Dr. Grubbs, has not treated his insomnia. Dckt. No. 45, Ex. B. at 3.

Plaintiff challenges CSP-Sac's current course of treatment, stating that he wants medication, not cognitive behavior therapy. Dckt. No. 28 at 3. Plaintiff argues that cognitive behavior therapy is not adequate treatment because he is incarcerated and under stressful conditions and that "just talking to a psychiatrist would not help . . . [his] conditions." Id. at 2. Plaintiff alleges people have died from sleep deprivation. Id. at 2. Plaintiff attaches an August 18, 2010 letter from Prison Health Care Services showing that he is currently being prescribed citalopram and mirtazepine, which are not sleep aid medications. Id. at 4, 7, 8.

Plaintiff alleges that he experiences pain, headache, anxiety, suicidal thoughts, and hopelessness. Dckt. No. 38 at 5. He alleges that he was transferred to the Department of Mental Health at Salinas Valley State Prison and while in custody there, the prison doctors conducted a sleep study of plaintiff and administered him Ativan. Id. at 6. Plaintiff also alleges that U.C. Davis Medical Center has recommended to CSP-Sac that plaintiff needs a "neurology-sleep clinic referral," and that CSP-Sac has ignored the recommendation and has "scratched it out" in his medical records. Id. at ...

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