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Carter v. Ives

United States District Court, C.D. California

May 30, 2017

GERALD CARTER, Plaintiff,
v.
RICHARD IVES, ET AL., Defendants.

          ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND

          HONORABLE KENLY KIYA KATO United States Magistrate Judge

         I. INTRODUCTION

         Plaintiff Gerald Carter (“Plaintiff”) filed a pro se Second Amended Complaint (“SAC”) pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) against defendants Richard Ives, P.A. Wolverton, Dr. Allen, Mr. Simpson, Juan D. Castillo, and Ian Connors (“Defendants”) in their individual and official capacities for deliberate indifference to his serious medical needs in violation of the Eighth Amendment. As discussed below, the Court dismisses the SAC with leave to amend.

         II. PROCEDURAL HISTORY

         On June 20, 2016, Plaintiff, an inmate in the custody of the Federal Bureau of Prisons (“BOP”) at United States Penitentiary Victorville (“USP Victorville”), constructively filed[1] a Complaint alleging Defendants violated his Eighth Amendment right by failing to treat him for Human Immunodeficiency Virus (“HIV”). ECF Docket No. (“Dkt.”) 1, Compl. Though Plaintiff expressed his personal belief he was HIV positive, it was unclear from the Complaint whether Plaintiff had actually been diagnosed and whether prison officials knew about the alleged diagnosis. Id. Thus, on September 29, 2016, the Court dismissed Plaintiff's original Complaint with leave to amend for failure to state a claim. Dkt. 14, Order.

         On October 13, 2016, Plaintiff constructively filed a First Amended Complaint (“FAC”) against Defendants in both their official and individual capacities. Dkt. 15, FAC at 3-4. In the FAC, Plaintiff alleged Defendants failed to provide him with appropriate treatment for his alleged HIV and fungal diagnosis in violation of the Eighth Amendment. Id. at 3-6. Plaintiff, however, appeared to concede he had never been diagnosed as HIV positive. See id. at 10, 11, 13, 15-17, 25. In fact, Plaintiff conceded Defendants had administered an HIV test, and the results were negative. See id. Thus, on November 9, 2016, the Court again dismissed Plaintiff's FAC with leave to amend for failure to state a claim and granted Plaintiff until November 30, 2016 to file a SAC. Dkt. 16, Order.

         On November 29, 2016, Plaintiff filed a request for an extension of time to file a SAC. Dkt. 17, Request. On December 7, 2016, the Court granted Plaintiff's request, allowing Plaintiff until January 10, 2017 to file a SAC. Dkt. 18, Order.

         On January 25, 2017, the Court issued a Report and Recommendation (“Report”) that the matter be dismissed for failure to prosecute and to comply with court orders. Dkt. 19. On February 6, 2017, Plaintiff filed Objections to the Report claiming he mailed a SAC on January 6, 2017. Dkt. 21. Hence, on February 24, 2017, the Court vacated its Report and ordered Plaintiff file a SAC no later than March 24, 2017. Dkt. 22.

         On March 23, 2017, the Court received a request for an extension of time to file a SAC from Plaintiff. Dkt. 23. The Court granted Plaintiff's request and ordered the SAC filed by April 27, 2017. Dkt. 24. On May 3, 2017, the Court issued a Report and Recommendation that the matter be dismissed for failure to prosecute and to comply with court orders.[2] Dkt. 25.

         On April 25, 2017, Plaintiff constructively filed the instant SAC.

         III. ALLEGATIONS IN THE SAC

         In the SAC, Plaintiff alleges Defendants have failed to treat him for his “serious medical issue.” Dkt. 27, SAC at 5. Plaintiff alleges he “knows his health is getting worse[] as time goes on;” yet, he is not receiving any treatment. Id. Plaintiff additionally claims he cannot “hold [] food [i]n his stomach, ” and he must “use the restroom [during] every meal.” Id. Plaintiff alleges Defendants are “aware of the serious medical issue” and that he “spoke to medical about these serious medical issue[s], [but] they refuse to treat the ailment.” Id. Plaintiff claims “Defend[]ants can not argue they did not know about the complaints that [he] made to the medical department and to them.” Dkt. 27-2 at 1.

         As a result of his injuries, Plaintiff is seeking “declaratory, monetary, [and] punitive damages” for “a total of $1, 000, 000.00”; and injunctive relief to obtain from an outside health care giver an independent test for HIV.” Dkt. 27 at 6. Plaintiff requests the Court grant his “civil rights complaint facts about [his] HIV-AIDS that is pending in [] this honorable court.” Dkt. 27-1 at 1.

         IV. STAND ...


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