Grimes v. Chisum

          ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK

          HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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 order.

         DISCUSSION

         A. Standard of Review

         A 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).

         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 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

         B. Plaintiffs Claims

         Plaintiff 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).

         Plaintiff 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).

         C. Doe Defendants

         Plaintiff 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.)

         Although 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, 512(2002).

         CONCLUSION

         For the reasons state above, the ...