July 3, 2013
ROCKY HOLMES, Plaintiff,
DR. M. SEPULVEDA; DR. S. RHOADS; Dr. GRIM; DR. CLARK; DR. NISANNI; DR. CAMPBELL, Defendants.
ORDER OF PARTIAL DISMISSAL AND OF SERVICE
WILLIAM ALSUP, District Judge.
Plaintiff, a pro se prisoner, filed this case in the United States District Court for the Eastern District of California ("Eastern District") on November 7, 2011. Plaintiff brings claims under 42 U.S.C. 1983 based on inadequate medical care he received at Tehachapi State Prison and Salinas Valley State Prison. On April 19, 2013, the Eastern District reviewed the complaint for the first time and "severed" the claims about plaintiff's medical care at Salinas Valley from the claims about his care at Tehachapi. The Eastern District transferred the Salinas Valley claims to this court for venue reasons, but kept the Tehachapi claims, which were dismissed with leave to amend. After a review of the complaint pursuant to 28 U.S.C. 1915A(a), it is ordered served upon the two defendants at Salinas Valley, Dr. Rhoads and Dr. Sepulveda, and dismissed as to the remaining defendants.
A. STANDARD OF REVIEW
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the statement need only "give the defendant fair notice of what the.... claim is and the grounds upon which it rests."'" Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted). Although in order to state a claim a complaint "does not need detailed factual allegations, ... a plaintiff's obligation to provide the grounds of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974.
To state a claim under 42 U.S.C. 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
B. LEGAL CLAIMS
As noted above, the claims against the defendants at Tehachapi, Dr. Grim, Dr. Clark, Cr. Nisanni, are Dr. Campbell, based on the medical care that plaintiff received there were not transferred here, and are presently and properly pending in the Eastern District of California. Consequently those claims will be dismissed from this action.
Plaintiff alleges that when he was transferred from Tehachapi to Salinas Valley in September 2009, he was continuing to suffer a great deal of pain in his right shoulder even after receiving shoulder surgery to repair a torn rotator cuff. He was seen by Dr. Rhoads upon his arrival at Salinas Valley, and every few months thereafter until February 2011. He alleges that he informed Dr. Rhoads that the pain medication was not sufficient to alleviate his "debilitating" pain in his right shoulder, but Dr. Rhoads failed to redress that problem. He alleges that in May 2010, Dr. Rhoads told him that plaintiff would be sent to an orthopedist and given an MRI, but neither was provided to him. In March 2011, Dr. Sepulveda allegedly denied his request for an MRI and pain medication in an administrative grievance. According to plaintiff, his medical records showed that an MRI had been recommended by an orthopedist in March 2009 to see if there were further tears in his rotator cuff that had not been addressed in surgery. When liberally construed, these allegations state cognizable claims against Dr. Rhoads and Dr. Sepulveda for deliberate indifference to his serious medical needs in violation of the Eighth Amendment.
For the reasons set out above, Accordingly, it is hereby ordered as follows:
1. The claims against Dr. Grim, Dr. Nassani, Dr. Clark and Dr. Campbell are DISMISSED.
2. The clerk shall issue summons and the United States Marshal shall serve, without prepayment of fees, a copy of the complaint (dkt. 1) with all attachments thereto, and a copy of this order upon defendants: Dr. S. Rhoads and Dr. M. Sepulveda at Salinas Valley State Prison. A courtesy copy of the complaint with attachments and this order shall also be mailed to the California Attorney General's Office.
3. Defendants shall file an answer that complies with the Federal Rules of Civil Procedure.
4. In order to expedite the resolution of this case:
a. No later than 91 days from the date this order is filed, defendants shall file a motion for summary judgment or other dispositive motion. If defendants are of the opinion that this case cannot be resolved by summary judgment, they shall so inform the court prior to the date the summary judgment motion is due. All papers filed with the court shall be promptly served on the plaintiff.
b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the court and served upon defendants no later than 28 days from the date of service of the motion. Plaintiff must read the attached page headed "NOTICE - WARNING, " which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).
If defendants file an unenumerated motion to dismiss claiming that plaintiff failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should take note of the attached page headed "NOTICE - WARNING (EXHAUSTION), " which is provided to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir.), cert. denied, Alameida v. Wyatt, 124 S.Ct. 50 (2003).
c. Defendants shall file a reply brief no later than 14 days after the date of service of the opposition.
d. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion unless the court so orders at a later date.
e. Along with their motion, defendants shall proof that they served plaintiff the applicable warning(s) required by Woods v. Carey, No. 09-15548, slip op. 7871 (9th Cir. July 6, 2012) and/or Stratton v. Buck, No. 10-35656, slip op. 11477 (9th Cir. Sept. 19, 2012), at the same time they served him with their motion. Failure to do so will result in the summary dismissal of their motion without prejudice.
4. All communications by the plaintiff with the court must be served on defendant, or defendant's counsel once counsel has been designated, by mailing a true copy of the document to defendant or defendant's counsel.
5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is required before the parties may conduct discovery.
6. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court informed of any change of address and must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
7. The motion for access to the law library (dkt. 30) is GRANTED IN PART. Defendants shall allow plaintiff reasonable access to the law library to the extent necessary to honor his right to access the courts pursuant to Lewis v. Casey, 518 U.S. 343, 350 (1996). See also Bounds v. Smith, 430 U.S. 817, 821 (1977); Hebbe v. Pliler, 627 F.3d 338, 343 (9th Cir. 2010).
IT IS SO ORDERED.