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E.J. McElroy v. Adam

United States District Court, N.D. California

July 1, 2019

E. J. MCELROY, Plaintiff,
v.
NANCY ADAM, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS; GRANTING MOTION TO DISMISS; GRANTING REQUEST FOR JUDICIAL NOTICE; AND TERMINATING ALL REMAINING PENDING MOTIONS

          YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiff, a state prisoner and frequent litigant in federal court who is currently incarcerated at the Richard J. Donovan Correctional Facility (“RJDCF”), filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against prison officials at two different institutions: Pelican Bay State Prison (“PBSP”) and the California Health Care Facility (“CHCF”). Magistrate Judge Donna M. Ryu granted Plaintiff's motion for leave to proceed in forma pauperis (“IFP”). Thereafter, the action was reassigned to the undersigned judge, who dismissed all claims relating to his incarceration at CHCF without prejudice to him refiling them in a new civil rights action in the United States District Court for the Eastern District of California, dismissed as moot his claims for injunctive relief, served the claim of deliberate indifference in the complaint on Defendant, and dismissed all remaining claims.

         The parties are presently before the Court on Defendant's motion to revoke Plaintiff's IFP status, pursuant to 28 U.S.C. § 1915(g), and to dismiss the action without prejudice. Dkt. 43. Defendant has also filed a Request for Judicial Notice. Dkt. 43-1. Plaintiff has filed an opposition, and Defendant has filed a reply. Dkts. 46, 47, 50. For the reasons stated below, the court GRANTS Defendant's motion to revoke Plaintiff's IFP status and to dismiss the action, GRANTS Defendant's request for judicial notice, and terminates all remaining pending motions.

         II. BACKGROUND

         On June 9, 2017, Plaintiff filed his complaint, alleging constitutional violations occurring at PBSP and CHCF, where he previously was incarcerated. Plaintiff sought monetary damages and injunctive relief.

         As mentioned above, on August 23, 2017, Magistrate Judge Ryu granted Plaintiff's motion for leave to proceed IFP. Dkt. 9. Thereafter, this matter was reassigned to the undersigned judge, who issued an Order of Partial Dismissal and Service. Dkts. 14, 15. The following background is taken from the Court's Order of Partial Dismissal and Service, which states as follows:

It seems that Plaintiff claims that he was not provided with adequate medical and dental care at PBSP, stating as follows:
Prior to [PBSP] adverse transfer (July 2016) claimant was given a bonafide initial medical plan that discovered several or several more painful injuries and symptoms that tie in to injuries that were being disregarded at PBSP. . . .
Being adversely transfer[ed] to [PBSP] a second time didn't make any symptoms better nor manageable and did cause several allergen outbreaks from what the Plaintiff did have allergic reaction in general . . . being more specific Plaintiff instantly “suffered gum/tooth pain, ” inability to chew, “loud funk, ” “ab[sc]ess, ” “cavity” “infection, ” tongue inflammation, blisters, bleeding “pustules” and “painful swelling” on gums and tongue, “abdominal pain, ” nausea, trouble swallowing, “flaring” and “burning” etc. etc.
. . . [T]he PBSP Defendants allowed the same issues to rebuild as God-awful as the[y] were . . . claimant re-complained ever since, claimant wrote “Employee Misconduct Complaint” directly to the Chief Medical Officers at PBSP and CHCF and 1824 Special Accommodation request forms at least twice also.
Dkt. 1 at 6.[1] Plaintiff has linked his claim to Defendants Adam and “PBSP Doe . . . D.D.S., ” and the Court notes that Plaintiff refers to these Defendants in one portion of the complaint as follows:
Not only has claimant made out several grievances, he also has usually made it plain and simple of his needs with 7362 request for medical services at [PBSP] and at CHCF prisons to medical nurses, Assistants Adam [from PBSP] and Youssef [from CHCF] or B Yard CHCF Medical Doctor (to no avail) to get before a bonafide dental specialist . . . at PBSP between September [2015] and January 2016 and since July 18-22, 2016 Plaintiff has had no real medical awareness, alerts, nor proper treatment . . . (discriminatively) despite a bonafide medical facility that the state department recognizes . . . has made initial medical recommendations and prescriptions that specifically prevent defect . . . .
The Medical (“Olsen”) Record has since been withheld from claimant/proprietor of timeliness . . . those PBSP Defendants DDS and Does and Dental Assistant Phang [from CHCF] have recklessly been indifferent every time Plaintiff brought his dental injury to their attention. . . .
Id. at 8. These allegations above, liberally construed, state a claim of deliberate indifference against Defendants Adam and “PBSP Doe . . . D.D.S.”

Dkt. 15 at 4 (footnote and brackets added). In its screening order, the Court noted that Plaintiff's complaint arose from his treatment while incarcerated PBSP and CHCF, but that Plaintiff had been transferred to RJDCF (located in San Diego County). Upon its initial review of the complaint, the Court dismissed as moot Plaintiff's claims for injunctive relief based on his confinement at PSBP because Plaintiff was no longer incarcerated at PBSP. The Court found that Plaintiff stated a cognizable claim of deliberate indifference against Defendant Adam and “PBSP Doe . . . D.D.S.” Plaintiff was given leave to identify the Doe Defendant, but to date he has not done so. The Court had warned Plaintiff that the failure to do so would result in the dismissal of Defendant “PBSP Doe . . . D.D.S.” without prejudice to Plaintiff filing a new action against him or her.[2] The Court also dismissed any claims against the Defendant groups of PBSP “Medical Dept. Does and Dental Dept. CDCR Agenc[ies] contracted to provide individual[ized] effective health care” and “7-10 Does” who are PBSP “Medical Record Analysts” (as opposed to individually named PBSP employees). Finally, the Court dismissed Plaintiff's supervisory liability claims against Defendant Kernan, PBSP “Chief Medical Officer Doe, ” and PBSP “Medical Supervisor.”

         As mentioned above, Defendant has filed a motion requesting for the Court to revoke Plaintiff's IFP status under 28 U.S.C. § 1915(g) and to dismiss the instant action. Plaintiff has filed an ...


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