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Thomas v. Rodriguez

United States District Court, S.D. California

April 13, 2017

SAMMY THOMAS, CDCR # F-12551, Plaintiff,
v.
J. RODRIGUEZ and P. COLIO, Defendants,

         ORDER

         (1) DIRECTING THE U.S. MARSHAL TO EFFECT SERVICE OF THE SECOND AMENDED COMPLAINT UPON DEFENDANTS RODRIGUEZ AND COLIO;

         (2) SUA SPONTE DISMISSING DEFENDANTS DR. ESLOCK AND NURSE NUNEZ PURSUANT TO 28 U.S.C. §§ 1915 (e)(2) AND 1915A(b); and,

         (3) DISMISSING REMAINING DEFENDANTS FOR LACK OF VENUE PURSUANT TO 28 U.S.C. §§ 84(c)(1), 1391(b) AND 1406(a)

          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 (“Lancaster”), 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 details regarding his injury or medical needs sufficient to allege they were 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.)

         On February 6, 2017, Plaintiff filed a First Amended Complaint (“FAC”), in which he re-alleged his claims against Defendants Rodriguez and Colio regarding their failure to restrain him during his trip to the outside hospital, and added claims against Defendants Nurse Nunez and Dr. Eslock, who treated him at the Calipatria infirmary upon his return for the injury sustained during transport. (ECF No. 7.) On February 28, 2017, the Court issued an Order in which it found that the allegations against Defendants Rodriguez and Colio in the FAC survived screening under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), but that the allegations against Defendants Nurse Nunez and Dr. Eslock did not. (ECF No. 22.) The Court dismissed Defendants Nurse Nunez and Dr. Eslock without prejudice, and gave Plaintiff the option of filing a Second Amended Complaint in an attempt to cure the pleading deficiencies, or proceed with his FAC and have the Court direct the United States Marshal to effect service upon Defendants Rodriguez and Colio. (Id.)

         On April 10, 2017, Plaintiff filed a Second Amended Complaint, which is now the operative pleading in this action. (ECF No. 23.) Plaintiff re-alleges his claim against Defendants Rodriguez and Colio regarding their failure to properly restrain him during transport, sets forth new allegations and new claims against Defendant Nurse Nunez, names Defendant Dr. Eslock as a Defendant but does not set forth any allegations against him, and adds additional claims against additional Defendants regarding the medical care he has received after he was transferred to Lancaster, where he is currently incarcerated. (Id.)

         I. Defendants Rodriguez and Colio

         For the reasons set forth in this Court's February 28, 2017 Order, the Court finds that Plaintiff's allegations against Defendants Rodriguez and Colio survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). (See ECF No. 22 at 6.) Accordingly, the Court finds Plaintiff is entitled to U.S. Marshal service on his behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed.R.Civ.P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”)

         II. Defendants Nurse Nunez and Dr. Eslock

         Other than Rodriguez and Colio, the only other Calipatria Defendants named in the Second Amended Complaint are Defendants Nurse Nunez and Dr. Eslock. (SAC No. 23 at 2.) In the FAC, Plaintiff alleged that he was treated at the Calipatria infirmary by these Defendants upon his return for the injury he sustained during transport, but did not allege what they did or failed to do which demonstrated deliberate indifference to his medical needs. (FAC at 12-14.) Because the FAC contained no facts that showed these Defendants had acted with deliberate indifference to Plaintiff's serious medical needs by knowing of and disregarding an excessive risk to his health, they were dismissed pursuant to the screening provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and Plaintiff was provided leave to amend the FAC against them. (ECF No. 22 at 8-9.)

         Although Plaintiff now names Dr. Eslock as a Defendant in the Second Amended Complaint (see SAC at 2), he sets forth no allegations whatsoever regarding him. For the same reasons set forth in the Court's February 28, 2017, Order, Plaintiff's allegations against this Defendant do not survive the ...


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