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Baldhosky v. State

United States District Court, E.D. California

November 21, 2017

RAYMOND BALDHOSKY, Plaintiff,
v.
STATE OF CALIFORNIA, ET AL., Defendant.

          ORDER REINSTATING DISMISSED CLAIMS AND FINDINGS AND RECOMMENDATIONS TO DISMISS CLAIMS (ECF NO. 8)

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         On 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 41-50. (Id.)

         This 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.)

         I. Vacate Dismissal

         Federal 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.

         Here, 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.

         II. Findings and Recommendations on Second Amended Complaint

         A. Screening Requirement

         The 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. § 1915(e)(2)(B)(ii).

         B. Pleading Standard

         Section 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.

         Under 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.

         C. Plaintiff's Allegations

         Plaintiff, 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 follows:

         Plaintiff 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.

         Plaintiff 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 second level.

         Dr. 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.

         Unable 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 ...


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