United States District Court, E.D. California
ORDER REINSTATING DISMISSED CLAIMS AND FINDINGS AND
RECOMMENDATIONS TO DISMISS CLAIMS (ECF NO. 8)
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action filed pursuant to 42 U.S.C.
§ 1983. (ECF No. 1.) He has consented to Magistrate
Judge jurisdiction. (ECF No. 5.) Defendants Vidal Sanchez,
Yang, Cross, Palos (erroneously identified as
“Toni” in the complaint), Smith, Daniels, and
Dwivedi appeared in this action and declined to consent to
Magistrate Judge jurisdiction. (ECF Nos. 19; 22; 29.) No
other Defendants have yet appeared in the action.
October 20, 2014, the Court screened the first amended
complaint and found cognizable claims against Defendants CSP
physicians Sanchez and Dwivedi and CSP nurses Yang, Cross,
“Toni” (Palos), Smith, Daniels and Does 2-13,
15-17, 19-20 and 24-40 for medical indifference and state law
medical negligence. (ECF No. 8.) The Court dismissed all
claims against Defendants State of California, the California
Department of Corrections and Rehabilitation
(“CDCR”), Corcoran State Prison
(“CSP”), Wang M.D., CSP Director of Nursing Doe
1, Chavez, Schutt, and CDCR personnel Does 14, 18, 21-23, and
case has proceeded on Plaintiff's claims against
Defendants Vidal Sanchez, Yang, Cross, Palos, Smith, Daniels,
and Dwivedi, who are the only Defendants on whom service has
been had. The action was dismissed on April 22, 2015 and
judgment entered in favor of Defendants. (ECF Nos. 35; 36.)
However, the Ninth Circuit vacated the judgment and remanded
the case back to the district court on August 4, 2016. (ECF
No. 44.) Defendants have since answered the first amended
complaint and a trial scheduling order has been entered. (ECF
Nos. 52; 55.)
courts are under a continuing duty to confirm their
jurisdictional power and are “obliged to inquire sua
sponte whenever a doubt arises as to [its]
existence[.]” Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 278 (1977) (citations
omitted). On November 9, 2017, the Ninth Circuit Court of
Appeals ruled that 28 U.S.C. § 636(c)(1) requires the
consent of all named plaintiffs and defendants, even those
not served with process, before jurisdiction may vest in a
Magistrate Judge to dispose of a civil case. Williams v.
King, __F.3d__, No. 15-15259, 2017 WL 5180205 (9th Cir.
Nov. 9, 2017). Accordingly, the Court held that a Magistrate
Judge does not have jurisdiction to dismiss a case with
prejudice during screening even if the plaintiff has
consented to Magistrate Judge jurisdiction. Id.
Defendants State of California, CDCR, CSP, Wang M.D., CSP
Director of Nursing Doe 1, Chavez, Schutt, and CDCR personnel
Does 14, 18, 21-23, and 41-50 were never served and never
appeared in this action. Therefore, they have not consented
to Magistrate Judge jurisdiction. Because these Defendants
have not consented and the undersigned dismissed
Plaintiff's claims against them with prejudice, the
dismissal is invalid under Williams. The claims
therefore are reinstated. As set forth below, the undersigned
will recommend to the District Judge that they be dismissed.
Findings and Recommendations on Second Amended
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A(b)(1), (2). “Notwithstanding any filing fee, or
any portion thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines that . .
. the action or appeal . . . fails to state a claim upon
which relief may be granted.” 28 U.S.C. §
1983 provides a cause of action against any person who
deprives an individual of federally guaranteed rights
“under color” of state law. 42 U.S.C. §
1983. A complaint 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)), and courts “are not required to indulge
unwarranted inferences, ” Doe I v. Wal-Mart Stores,
Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal
quotation marks and citation omitted). While factual
allegations are accepted as true, legal conclusions are not.
Iqbal, 556 U.S. at 678.
section 1983, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of his rights.
Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
2002). This requires the presentation of factual allegations
sufficient to state a plausible claim for relief.
Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009). Prisoners
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor, Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citations omitted), but
nevertheless, the mere possibility of misconduct falls short
of meeting the plausibility standard, Iqbal, 556
U.S. at 678; Moss, 572 F.3d at 969.
a paraplegic, claims he was harmed by a policy and practice
of medical indifference and neglect while he was a prisoner
at CSP. His essential allegations may be summarized as
must urinate by catheter. A #16 catheter is the correct size
for Plaintiff. Dr. Sanchez failed to use and ensure the
supply and use of #16 catheters. Nurses Yang, Cross, Toni,
Smith, Daniels, and Does 2-13, 15-17, 19-20 and 24-40
repeatedly attempted to and did insert size #18 catheters
that were too large for Plaintiff's urethra. This caused
pain and damaged the urethra and largely prevented insertion
of a catheter. Plaintiff at times was left with a full
bladder and unable to urinate.
repeatedly requested use of sterile #16 catheter kits.
Nonparty Dr. Brar ordered that these kits be used. However,
they were only occasionally made available. Instead
Defendants continued to use #18 catheters. Dr. Wang responded
to Plaintiff's related medical appeal at the first level.
Health Care Manager Schutt responded to the appeal at the
Sanchez, despite Plaintiff's continuing pain and catheter
problems, refused to expedite consultation with prison
urologist, Dr. Dwivedi. Nurse Doe #2 told Plaintiff to reduce
his water intake even though this increased recurrence of
urinary tract infection. Nurse Chavez did not provide bladder
irrigation kits that Plaintiff requested.
to urinate by catheter, Plaintiff was transported by
ambulance to the hospital where a supra pubic catheter was
surgically placed by nonparty, Dr. Shakir. The ambulance was
delayed because Doe 21 ...