United States District Court, N.D. California
ORDER GRANTING PLAINTIFF'S MOTIONS FOR LEAVE TO FILE SECOND AMENDED COMPLAINT; GRANTING PLAINTIFF'S MOTION TO REINSTATE DEFENDANT ACOSTA; DENYING WITHOUT PREJUDICE DEFENDANTS' MOTIONS TO DISMISS; SERVING UNSERVED DEFENDANTS (Doc. nos. 44, 81, 83, 87, 89)
THELTON E. HENDERSON, District Judge.
On February 26, 2013, Plaintiff Kenneth Gibbs, an inmate at California State Prison-Sacramento (CSP-SAC), filed this civil rights action under 42 U.S.C. § 1983 raising twenty-three claims against forty defendants who worked at Pelican Bay State Prison (PBSP), where Plaintiff was formerly incarcerated. On April 24, 2013, the Court issued an Order dismissing the complaint with leave to amend and, on May 8, 2013, Plaintiff filed a first amended complaint (FAC).
On May 16, 2013, the Court ordered service of eight cognizable claims against twelve defendants. The claims found to be cognizable were: (1) an Eighth Amendment claim for deliberate indifference to serious medical needs against Dental Assistant Tupman; (2) an Eighth Amendment claim for deliberate indifference to serious medical needs against Dr. Crinklaw and Dr. Malo-Clines; (3) a First Amendment retaliation claim against Lt. Diggle for issuing a Rules Violation Report (RVR) against Plaintiff; (4) a First Amendment retaliation claim against Warden Lewis and Capt. Wood for transferring Plaintiff in order to force him to withdraw an administrative appeal; (5) a First Amendment retaliation claim against Counselor Royal, Officer Milton, and Capt. Wood for placing Plaintiff on C status in retaliation for Plaintiff's filing administrative appeals; (6) a due process claim against Lt. Anthony for denying Plaintiff's right to a witness at a disciplinary hearing; (7) an Eighth Amendment claim against Sgt. Acosta and Officer Castellaw for cruel and unusual punishment for leaking information about Plaintiff to other inmates; and (8) an Eighth Amendment claim against Officer Evans for using excessive force against Plaintiff.
On July 22, 2013, the Court received a letter from Plaintiff stating that Sgt. Acosta did not use excessive force against him. The Court construed this as Plaintiff's motion to voluntarily dismiss the claims against Sgt. Acosta and, on August 1, 2013, dismissed Sgt. Acosta from the action.
Plaintiff has filed two motions for leave to amend the complaint as well as a motion to reinstate Defendant Sgt. Acosta. Also before the Court are: a motion to dismiss filed by Defendants Evans, Royal, Lewis, Milton, Diggle, and Wood; and a separate motion to dismiss filed by Defendants Anthony, Castellaw, and Tupman.
Plaintiff seeks leave to file a second amended complaint (SAC) adding Dr. Thomas J. Martinelli as a defendant on his Eighth Amendment claim for deliberate indifference to serious medical needs. In his proposed SAC, Plaintiff alleges that on April 25, 2008, Dr. Martinelli performed a colonoscopy on Plaintiff at Sutter Coast Hospital. Plaintiff further alleges that Dr. Martinelli used contaminated and unsanitary instruments during the procedure, causing Plaintiff to become infected with herpes. These claims, liberally construed, state a claim of deliberate indifference against Dr. Martinelli.
Plaintiff correctly points out he originally filed his claim against Dr. Martinelli in Case. No. C. 13-02529 TEH (PR). This Court found the claims duplicative of the claims asserted in the instant action and dismissed Case. No. C. 13-02529. The Court, however, specifically granted Plaintiff leave to file an SAC in the instant action to add Dr. Martinelli as a defendant. (See Case. No. C. 13-02529 TEH (PR) at Dkt. 6.) Accordingly, Plaintiff's proposed SAC is proper, and his pending motions for leave to file the SAC are GRANTED.
Because the SAC does not add new claims or new defendants other than Dr. Martinelli, the Court will not issue a new screening order. Rather, the action will proceed on the eight claims found cognizable in the Court's order of May 16, 2013 as well as the Eighth Amendment deliberate indifference claim against Dr. Martinelli, found cognizable herein.
Plaintiff has filed a motion to reinstate Defendant Sgt. Acosta in which Plaintiff clarifies that his July 22, 2013 letter was not intended as a voluntary dismissal of Defendant Acosta. Plaintiff states that his letter was intended to notify the Court of an error in the Court's May 6, 2013 Service Order. Specifically, in the body of the Order, the Court found that Plaintiff had stated a cognizable Eighth Amendment claim against Defendant Acosta for cruel and unusual punishment for leaking information about Plaintiff to other inmates. In the conclusion section of the Order, however, the Court incorrectly stated that the claim against Defendant Acosta was an Eighth Amendment excessive force claim.
Plaintiff is correct. Accordingly, Plaintiff's motion to reinstate Defendant Acosta is GRANTED. The Court VACATES its August 1, 2013 Order dismissing Defendant Acosta from the action. Plaintiff's Eighth Amendment claim against Defendant Acosta for cruel and unusual punishment will proceed.
Defendants Evans, Royal, Lewis, Milton, Diggle, and Wood have filed a motion to dismiss Plaintiff's FAC based on failure to exhaust administrative remedies and failure to file within the statute of limitations. Defendants Anthony, Castellaw, and Tupman have filed a separate motion to dismiss Plaintiff's ...