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Thomas v. Rodriguez

United States District Court, S.D. California

February 28, 2017

SAMMY THOMAS, CDCR # F-12551, Plaintiff,
v.
J. RODRIGUEZ, P. COLIO, W.L. MONTGOMERY, M.D. STAINER, NURSE NUNEZ and DR. ESLOCK, Defendants,

         (1) SUA SPONTE DISMISSING WITHOUT PREJUDICE AND WITH LEAVE TO AMEND ALL CLAIMS AGAINST ALL DEFENDANTS PURSUANT TO 28 U.S.C. §§ 1915 (e)(2) AND 1915A(b), WITH THE EXCEPTION OF PLAINTIFF'S EIGHTH AMENDMENT CLAIM AGAINST DEFENDANTS RODRIGUEZ AND COLIO; (2) GRANTING LEAVE TO FILE A SECOND AMENDED COMPLAINT OR, ALTERNATELY, LEAVE TO REQUEST THE U.S. MARSHAL TO EFFECT SERVICE OF THE FIRST AMENDED COMPLAINT UPON DEFENDANTS RODRIGUEZ AND COLIO ONLY; AND, (3) DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL WITHOUT PREJUDICE

          HON. ANTHONY J. BATTAGLIA U.S. DISTRICT JUDGE.

         On August 29, 2016, Sammy Thomas (“Plaintiff”), a California state prisoner incarcerated at the California State Prison Los Angeles County, in Lancaster, California, filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff alleged that while he was housed at Calipatria State Prison (“Calipatria”) in Imperial, California, he was transported to an outside hospital by two Calipatria Correctional Officers, Defendants J. Rodriguez and P. Colio, the only Defendants named in the Complaint, who he claimed violated his state and federal rights when they failed to secure him with a seatbelt during transport, which resulted in an injury when the van made a sudden stop. (Compl. at 3-6.) Plaintiff did not pay the civil filing fee required by 28 U.S.C. § 1914(a) to commence a civil action, but filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.)

         On December 1, 2016, the Court granted Plaintiff leave to proceed in forma pauperis. (ECF No. 5.) The Court also dismissed the Complaint for failure to state a claim under 42 U.S.C. § 1983 because Plaintiff had failed to allege facts supporting the objective prong of an Eighth Amendment deliberate indifference claim as he did not provide sufficient details regarding his injury or medical needs to allege they were sufficiently serious, and failed to allege facts supporting the subjective prong of such a claim as he merely alleged that Defendants Rodriguez and Colio acted negligently rather than knowing of and deliberately disregarding a serious risk to his safety or serious medical needs. (Id. at 6-9.) Plaintiff was informed of these deficiencies of his pleading and granted leave to amend his Complaint. (Id.)

         Plaintiff has now filed a First Amended Complaint [“FAC”], along with a Motion for appointment of counsel, and a Request for the Court to issue a summons and direct the United States Marshal to effect service of the FAC. (ECF Nos. 7, 11, 13.) For the following reasons, the Court finds that the allegations against Defendants Rodriguez and Colio in the FAC are sufficient to survive screening under 28 U.S.C. §§ 1915(e)(2) and 1915A(b). However, the FAC also contains allegations which were not presented in the original Complaint, against Defendants not named in the original Complaint, regarding denial of medical care, including the former Acting Director of the Division of Adult Institutions for the California Department of Corrections and Rehabilitation (“CDCR”), the Warden of Calipatria, and a doctor and a nurse employed at Calipatria. As set forth below, the new allegations against the new Defendants do not survive screening under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and the Court will dismiss these new Defendants without prejudice. The Court will provide Plaintiff the option of filing a Second Amended Complaint in an attempt to cure the pleading deficiencies with respect to his Eighth Amendment deliberate indifference to his medical needs claim, or proceeding with his Eighth Amendment failure claim in the FAC against Defendants Rodriguez and Colio. If Plaintiff chooses to proceed with his FAC, the Court will direct the United States Marshal to effect service of the FAC upon Defendants Rodriguez and Colio. If Plaintiff chooses to file a Second Amended Complaint it will be subject to sua sponte screening under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and any Defendants not named and any claims not re-alleged will be considered waived.

         I. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A

         “The Court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, ” complaints filed by all persons proceeding IFP, and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). The Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc).

         All complaints must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. The “mere possibility of misconduct” falls short of meeting the Iqbal plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

         “When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“Under § 1983, when determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). However, while the court has an “obligation . . . where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt, ” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc), it may not, in so doing, “supply essential elements of the claim that were not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

         “Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws of the United States, and (2) that the deprivation was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

         A. Plaintiff's Allegations

         Plaintiff alleges that on the morning of August 12, 2015, while housed at Calipatria, he was transported by Defendants Correctional Officers Rodriguez and Colio from Calipatria to a hospital in Indio, California, for a physical therapy appointment, and was shackled with waist chains and handcuffs. (FAC at 9.) He was placed in a van equipped with seatbelts, but was unable to fasten his seatbelt by himself due to his shackles. (Id. at 10.) He asked Defendants Rodriguez and Colio: “Are you going to fasten my seatbelt?, ” to which they replied: “No, you'll be alright.” (Id.) During transportation to the hospital the van stopped suddenly and Plaintiff was thrown forward, hit his head, and injured his back. (Id. at 11.) When he complained of his injuries Defendants Rodriguez and Colio continued to drive to the hospital and told him his physical therapist would examine him, although Plaintiff pointed out that the physical therapist was not a doctor and was not qualified to examine or treat his injuries. (Id.) At the hospital the physical therapist examined Plaintiff and he completed his physical therapy with difficulty, and was then driven back to Calipatria, this time with a seat belt. (Id. at 12-13.) Plaintiff filed an inmate grievance against Defendants Rodriguez and Colio alleging they had violated CDCR policies and procedures by failing to secure him with a seatbelt and having a physical therapist evaluate him at the hospital rather than a doctor. (FAC Ex. A.) His grievance was granted in part, and the prison admitted that officers Rodriguez and Colio had violated departmental policy, although they refused on the basis of privacy concerns to identify which policy had been violated. (Id.)

         Plaintiff was examined by Defendant Nurse Nunez immediately upon his return to Calipatria, was given Ibuprofen for his pain and returned to his cell about 12:45 p.m. (FAC at 12-13.) He took a nap in his cell until about 3:20 p.m., at which time he attempted to get up to use the restroom, but could not get off his bunk because his back had seized up. (Id. at 13.) Plaintiff was examined at the Calipatria infirmary, was treated and held overnight for observation. (Id. at 14.) Defendant Dr. Eslock sent Plaintiff back to his cell the next day after prescribing pain medication, and told him she would schedule an outside neurological consultation. (Id.)

         Plaintiff states that he was transferred to Lancaster before he could be seen by the neurologist, but had a teleconference with an outside doctor on December 17, 2016, who diagnosed him with a degenerative disc disease in his lower back and recommended surgery. (Id. at 14-15.) Plaintiff states that he has agreed to have the surgery, “so he requested authorization from the prison doctors who are denying me the surgery so I now suffer from chronic lower back pain everyday due to the negligence of all parties involved.” (Id. at 14-15.) He does not identify who is preventing him from having surgery, or whether they are at Calipatria or Lancaster. In addition to Defendants Rodriguez, Colio, Dr. Eslock and Nurse Nunez, Plaintiff names as Defendants M.D. Stainer, a former Acting Director of the ...


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