United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO:
1) GRANT DEFENDANTS' REQUEST FOR JUDICIAL NOTICE (ECF No. 24-1) 2) GRANT
DEFENDANTS' MOTION TO DISMISS (ECF No. 19) 3) GRANT DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S SURREPLY (ECF No. 26) 4)
DENY PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL (ECF No. 25)
MICHAEL J. SENG, Magistrate Judge.
I. PROCEDURAL HISTORY
Plaintiff Raymond Baldhosky is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action filed under 42 U.S.C. § 1983. The action proceeds on Plaintiff's medical indifference and state law medical negligence claims against Defendants Sanchez, Diwendi, Yang, Cross, Toni, Smith, Daniels, and Does 2-13, 15-17, 19-20, and 24-40, all physicians and nurses at Corcoran State Prison. (ECF No. 8.) Defendants have declined Magistrate Judge jurisdiction (ECF No. 22).
Before the Court are: Defendants' Request for Judicial Notice (ECF No. 24-1), Defendants' Motion to Dismiss (ECF No. 19), Defendants' Motion to Strike Plaintiff's Surreply (ECF No. 26) and Plaintiff's Motion for Appointment of Counsel (ECF No. 25)
Defendants moved to dismiss Plaintiff's federal and state claims on January 14, 2015 on statute of limitations grounds. (ECF No. 19). Plaintiff opposed the motion on January 30, 2015 (ECF No. 21). Defendants filed a reply and request for judicial notice on February 6, 2015. (ECF No. 24). Plaintiff filed a "Clarification Letter to the Court and Motion to Request Appointment of Counsel" (ECF No. 25), which in part addressed Defendants' Reply and thus amounted to a surreply to the motion to dismiss.
II. RELEVANT PLEADING FACTS
Plaintiff, a paraplegic, claims he was harmed by a policy and practice of medical indifference and neglect while he was a prisoner at CSP. He alleges that Defendants repeatedly used catheters that were the wrong size, causing pain, significant injury, and complete failure of his urethra, and then failed to provide appropriate follow-up care after surgeries to enable use of a supra-pubic catheter.
III. PROCEDURAL POSTURE
Plaintiff asserts that he has exhausted his administrative remedies. He filed a 602 appeal regarding the issues raised in his First Amended Complaint on August 24, 2008 and received a third level denial on January 10, 2010. Defendants do not dispute these assertions.
Plaintiff was released from prison on July 27, 2010. He originally filed suit, in case No. 1:12-cv-1200-MJS, on July 23, 2012, alleging medical indifference and state law negligence by Defendants and byl medical staff at another institution.
This Court issued a screening order in No. 1:12-cv-01200-MJS on December 9, 2013. In that screening order, the Court dismissed the case without prejudice, noting, among other things: "Plaintiff's complaint alleges unrelated claims involving distinct incidents at distinct CDCR facilities, and as such, violates Rule 18(a). Such amassing of unrelated claims is not permissible and if repeated will result in dismissal of unrelated claims. If Plaintiff chooses to file an amended pleading, it should include only related claims arising at a single CDCR facility." (ECF No. 24-1, at 9).
On January 22, 2014 Plaintiff filed an amended complaint in action number 1:12-cv-01200-MJS asserting claims against medical staff at Corcoran's Substance Abuse and Treatment Facility. Screening in that case has not yet been completed. Plaintiff then filed the original complaint in this action on February 7, 2014. After screening, his First Amended Complaint was permitted to proceed to service in October 2014. (ECF No. 8.)
III. REQUEST FOR JUDICIAL NOTICE
Defendants' reply brief responds to Plaintiff's argument for tolling by asking the Court to take judicial notice of the First Screening Order and part of the First Amended Complaint in Baldhosky v. Hubbard, 1:12-cv-01200-MJS.
Federal Rule of Evidence 201 authorizes the Court to judicially notice facts not subject to reasonable dispute, including court records, because they may be accurately determined from sources whose accuracy cannot reasonably be questioned. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). This includes the Court's own records. Id. Such notice is mandatory where the requesting party supplies the information to be noticed to the Court. FRE 201(c)(2).
The record in the earlier Baldhosky case appearing to be the proper subject of judicial notice and no timely request for an opportunity to be heard on the propriety of judicially noticing it having been made, FRE 201(e), Defendants' request is granted and the excerpts of the record in 1:12-cv-01200-MJS are judicially noticed.
III. MOTION TO ...