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Hutchins v. Lockyer

United States District Court, E.D. California

November 21, 2017

CLIFTON HUTCHINS, JR., Plaintiff,
v.
BILL LOCKYER, et al., Defendant.

          ORDER REINSTATING DISMISSED CLAIMS AND FINDINGS AND RECOMMENDATIONS TO DISMISS CLAIMS (ECF NOS. 20; 26)

          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. 7.) Defendant Johal appeared in this action and declined to consent to Magistrate Judge jurisdiction. (ECF No. 35.) Defendants Klang, Yousseff, Nurse Does 1-2, and Does 3-6 have not yet appeared in this action.

         On December 19, 2016, the Court screened and dismissed all claims against Defendants Klang, Yousseff, Nurse Does 1-2, and Does 3-6 in Plaintiff's second amended complaint with prejudice.[1] (ECF No 26.) Plaintiff declined to pursue claims against Defendants Lockyer, Lewis, Ramos, Sheheta, Patel, Katavich, and Does 7-10 in the second amended complaint after his original complaint and first amended complaint were dismissed with leave to amend. (ECF Nos. 14; 20.)

         This case has proceeded on Plaintiff's claim against Defendant Johal. (ECF Nos. 21; 26.) Defendant Johal filed a motion to dismiss on March 10, 2017. (ECF No. 30.) On August 22, 2017, the undersigned issued findings and recommendations to deny the motion to dismiss. (ECF No. 34.) Those findings and recommendations are currently pending before the District Judge.

         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 Klang, Yousseff, Nurse Does 1-2, and Does 3-6 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 against them therefore are reinstated. However, for the reasons 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, who is currently incarcerated at the Correctional Training Facility in Soledad, California, complains of acts that occurred at Wasco State Prison (“WSP”) in Wasco, California. Plaintiff brings this action against several Defendants, all employees of WSP: Drs. A. Johal, A. Klang, and A. Youssef; Nurse Does 1 and 2, and Does 3-6. Plaintiff alleges that Defendants denied him adequate medical care in violation of the Eighth Amendment of the Constitution.

         Plaintiff's allegations may be summarized as follows:

         Plaintiff has constant pain from arthritis and joint disease in his knee and shoulder. He was prescribed 30 mg of morphine to manage this pain.

         On August 16, 2014, Plaintiff submitted a CDCR 7362 Form (“7362”) requesting a medication refill for his morphine before he ran out and asking to be taken off of Ibuprofen because it was causing him stomach pain, nausea, and dizziness. Though Plaintiff was supposed to receive a response within 72 hours of submitting his request, he did not hear from Nurse Doe 1 in that time period. Therefore, on August 21, 2014, Plaintiff submitted a second 7362 repeating the requests from the first 7362 and also clarifying the nature of his ailments. Nurse Doe 1 deliberately failed to respond to both 7362s because Plaintiff had previously submitted verbal and written complaints about not receiving pain medication or seeing a doctor. As a result, Plaintiff suffered unnecessary pain between September 8, when his pain medication ran out, and September 12, 2014.

         Plaintiff had a “medical priority ducat” to see the doctor on September 8, 2014. He was not called to see the doctor that day. Accordingly, on September 9, 2014 he submitted another 7362. Plaintiff does not state to whom he submitted this form. He states that he “made medical staff aware” that he was never called to see the doctor for his appointment. Nurse Doe 2 deliberately failed to notify the doctor to refill Plaintiff's medication and/or set another appointment for Plaintiff to see the doctor.

         Plaintiff eventually saw Defendant Johal on September 12, 2014, after he had gone four days without morphine. At the appointment, Defendant Johal told Plaintiff that she would reduce Plaintiff's morphine prescription from 30 mg to 15 mg and thereafter discontinue it. When asked why, she said that Plaintiff “complained too much.” Defendant Johal's treatment plan ran counter to CDCR guidelines, as Defendant Johal was required to gradually taper Plaintiff off of morphine over time until the drug was “no longer needed.” Plaintiff states that Defendants Johal, Klang, and Youssef, along with Does 3-6, were all members of the pain management committee who jointly agreed to discontinue Plaintiff's morphine prescription without conducting a “medical assessment” of Plaintiff.

         On September 30, 2014, Nurse Doe 2 failed to send Plaintiff's morphine to the medication dispensary window. Plaintiff believes this was in ...


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