United States District Court, N.D. California
ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE
DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION;
INSTRUCTIONS TO CLERK
R. LLOYD UNITED STATES MAGISTRATE JUDGE.
a California state prisoner, filed the instant pro se civil
rights action pursuant to 42 U.S.C. § 1983 against
prison officials at the Salinas Valley State Prison
("SVSP"). Plaintiffs motion for leave to proceed in
forma pauperis will be addressed in a separate
Standard of Review
federal court must conduct a preliminary screening in any
case in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity. See
28 U.S.C. § 1915A(a). In its review, the court must
identify any cognizable claims and dismiss any claims that
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. See id.
§ 1915A(b)(l), (2). Pro se pleadings must, however, be
liberally construed. See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
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 violation was committed by a person
acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988).
alleges that he has "DPW" status, which means that
he is permanently confined to a wheelchair. (Compl. Attach,
at 3.) Plaintiff claims that while he was incarcerated at
SVSP, Defendant Kathy Chisum was deliberately indifferent to
his serious medical needs when she repeatedly denied his
requests for medically prescribed leather gloves for the use
of his wheelchair. (Id.) For lack of these leather
gloves, he developed painful calluses which has resulted in
"irr[e]parable injury because the painful calluses are
non-amenable to his health and well-being, with severe sharp
pain shooting up and down his shoulders, which restricts his
mobility to wheel himself around. And as a result, Plaintiff
is permanently disabled." (Id. at 8.) Liberally
construed, Plaintiff states a cognizable claim for a
violation of his rights under the Eighth Amendment. See
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
also claims Defendant's actions violated the Americans
with Disabilities Act, 42 U.S.C.§ 12101 et seq.
("ADA"), and seeks redress for "inhumane
health care." (Compl. Attach, at 2.) He claims that he
has been denied "ADA accommodations and appliances"
and deprived of "federally-funded ADA accommodations
contrary to physicians orders." (Id. at 7.)
Specifically, Plaintiff claims that the denial of leather
gloves has caused him to suffer excruciating pain on the
inside of both arms, blisters, sores and calluses, which has
effectively caused his daily activities to be confined to his
cell and depriving him from access to various functions and
programs offered by the prison, including access to the law
library, mental health group meetings, church, and medical
appointments. (Id. at 11.) Liberally construed,
Plaintiff states a cognizable claim under the ADA. See 28
C.F.R. § 35.130(b)(7).
also names "Defendant Does 1 thru 5" as various
staff members at SVSP "who had a hand in subjecting
Plaintiff to deliberate indifference and cruel and unusual
punishment." (Compl. Attach, at 3.) Plaintiff states
that he will obtain the names and positions of these Doe
defendants through discovery. (Id.)
the use of "John Doe" to identify a defendant is
not favored in the Ninth Circuit, see Gillespie v.
Civiletti, 629 F.2d 637, 642 (9th Cir. 1980);
Wiltsie v. Cal. Dep't of Corr., 406 F.2d 515,
518 (9th Cir. 1968), situations may arise where the identity
of alleged defendants cannot be known prior to the filing of
a complaint. In such circumstances, the plaintiff should be
given an opportunity through discovery to identify the
unknown defendants, unless it is clear that discovery would
not uncover their identities or that the complaint should be
dismissed on other grounds. See Gillespie, 629 F.2d
at 642; Velasquez v. Senko, 643 F.Supp. 1172, 1180
(N.D. Cal. 1986). Accordingly, Doe Defendants "1 thru
5" DISMISSED from this action. If, through discovery,
Plaintiff is able to identify the unknown defendants, he may
then motion the Court for leave to amend to name the intended
defendants and to issue summons upon them. See
Gillespie, 629 F.2d at 642; Barsten v. Dep't
of the Interior, 896 F.2d 422, 423-24 (9th Cir. 1990).
However, the Court notes that Plaintiff has failed to
identify Doe Defendants "1 thru 5" with any sort of
particularity, or describe how they each acted to violate his
Eighth Amendment rights. Should Plaintiff seek leave to amend
to name the intended defendants, he must also, in a short and
plain statement, give the newly named defendants fair notice
of the claim and the grounds upon which it rests.
Swierkiewicz v. Sorema N. A., 534 U.S. 506,
reasons state above, the ...