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Gentile v. U.S. Federal Marshal

United States District Court, E.D. California

September 5, 2017

RAYMOND A. GENTILE, Plaintiff,
v.
U.S. FEDERAL MARSHAL, Defendants.

          ORDER DISMISSING CASE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM (ECF NO. 24)

         I. BACKGROUND

         Plaintiff is proceeding in forma pauperis in this federal civil rights case filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389, 91 S.Ct. 1999, 2001, 29 L.Ed.2d 619 (1971).[1]

         The original complaint was filed on June 23, 2015. (ECF No. 1). Plaintiff named the “United States Federal Marshal” as the sole defendant and alleged that he was denied medical care while being held at the Lerdo Pre-Trial Facility (“Lerdo”) in Kern County, California. Specifically, Plaintiff alleged that in mid-2013 he was seen by doctors at Lerdo, who discovered a mass on Plaintiff's left kidney and determined that he required a biopsy. However, the U.S. Federal Marshal, the governmental entity controlling Plaintiff's custody, denied approval of the requests for treatment. Upon his release, Plaintiff was seen by doctors and a biopsy was performed revealing that Plaintiff had a rapidly growing mass diagnosed as Cystic Renal Cell Carcinoma. The doctors informed Plaintiff that due to the delay in treatment, the mass had grown significantly and his only option was to have the kidney removed.

         U.S. Magistrate Judge Dennis L. Beck dismissed the Complaint with leave to amend on October 28, 2015. (ECF No. 7). Magistrate Judge Beck found that Plaintiff's allegations were sufficient to state a claim under the Eighth Amendment for deliberate indifference, but Plaintiff had failed to identify a defendant. (Id.).

         Plaintiff filed a First Amended Complaint (“1AC”) on November 24, 2015. (ECF No. 8). The 1AC again alleged that while Plaintiff was being held in “Kern County Lerdo Prison Facility, ” doctors recommended a biopsy but approval for the biopsy was denied by the U.S. Federal Marshal. As defendants, Plaintiff listed David Harlow, Deputy Director (Washington, D.C.), Eben Morales, Assistant Director of Prisoner Operations (Washington, D.C.), and Albert Najera, U.S. Marshal (Sacramento).

         On April 20, 2016, U.S. Magistrate Judge Sandra M. Snyder appointed counsel for Plaintiff “for the limited purpose of investigating the claim, then drafting and filing an amended complaint pursuant to the screening order.” (ECF No. 9). On the same day, Magistrate Judge Snyder dismissed the First Amended Complaint with leave to amend because Plaintiff had failed to properly link the denials of medical care to the named defendants as required by applicable law. (ECF No. 10).

         On June 16, 2016, Plaintiff, assisted by his appointed counsel, filed a Second Amended Complaint, naming 20 unknown John Does defendants in connection with an alleged denial of medical treatment while Plaintiff was incarcerated at Lerdo State Prison in Kern County, California “under the control and direction of the United States Marshal's Service after being arrested for various charges related to owning and operating a medical marijuana dispensary in Bakersfield, California.” (ECF No. 11, p. 1 ¶ 1).

         Plaintiff was granted leave to serve a subpoena to identify the John Doe defendants, and that subpoena was returned executed on October 18, 2016. (ECF Nos. 12, 14, 17). In reviewing the subpoena response, the attorney was unable to identify any defendant who had denied Plaintiff medical care as alleged in the Second Amended Complaint. (ECF No. 22-2, p. 2 ¶ 9). The attorney counseled Plaintiff on the issue. (Id. at 2-3). However, Plaintiff informed the attorney that he no longer required representation in this matter. (Id. ¶ 13). The attorney was permitted to withdraw on May 31, 2017 (ECF No. 23). Upon the withdrawal, the attorney provided Plaintiff all records received in response to the discovery requests. (ECF No. 22-2 ¶ 13).

         II. THIRD AMENDED COMPLAINT

         On July 5, 2017, Plaintiff, now proceeding pro se, filed a Third Amended Complaint (“3AC”). (ECF No. 24). The substantive factual allegations relating to a denial of a request for biopsy remain largely unchanged. Like the three previous complaints, Plaintiff still contends that the U.S. Marshals Service denied approval of the biopsy requests. For the fourth time, no named individual is identified as the person responsible for the denials.

         The 3AC also adds new allegations. Plaintiff now attempts to sue Sheriff Margaret Mims (Fresno County Sheriff), Defendant Edward Moreno (Director, Fresno County Public Health Department), Defendant George Laird (Division Manager, Correctional Health, Fresno County Public Health Department), Defendant Pratap Narayen (Medical Director, Division of Correctional Health, Fresno County Public Health Department), and Kelly Santoro (Warden of Lerdo Max-Med Security Facility). All Defendants are sued in their official capacities, and Plaintiff, who is a Las Vegas, Nevada resident, seeks “declaratory and injunctive relief to remedy dangerous and unconstitutional conditions in the Fresno County Lerdo Max-Med Security Facilities, in the State of California, County of Fresno.” The 3AC alleges that:

Sheriff Mims is ultimately responsible for the care and safety of the Prisoners in the Prison. [Captain] Weldon oversees the contract with the Department of Public Health for the delivery of health care in the Prison. In this role, she works directly with Edward Moreno, George Laird and Pratap Narayan, who are the Department of Public Health administrators responsible for the delivery of health care at the Prison. All of these parties are intimately familiar with the policies and practices described herein that create an unreasonable risk of harm to prisoners at the prison.

(ECF No. 24 ¶ 27).

         Plaintiff alleges that the new Defendants subjected him to medical harm through policies and practices that denied him minimally adequate medical and mental health care. (Id. ¶ 26). He claims that Defendants have a policy and practice of maintaining fewer health care positions than necessary to adequately treat the prison population, which resulted in a lack of adequate diagnosis at an early stage of his cancer. (Id. ΒΆΒΆ 30-33). Additionally, Plaintiff alleges ...


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