United States District Court, E.D. California
ORDER REINSTATING DISMISSED CLAIMS AND FINDINGS AND
RECOMMENDATIONS TO DISMISS CLAIMS (ECF NOS. 20; 26)
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. 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.
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. (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;
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
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 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
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.
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.
allegations may be summarized as follows:
has constant pain from arthritis and joint disease in his
knee and shoulder. He was prescribed 30 mg of morphine to
manage this pain.
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.
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.
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.
September 30, 2014, Nurse Doe 2 failed to send
Plaintiff's morphine to the medication dispensary window.
Plaintiff believes this was in ...