United States District Court, N.D. California
E. J. MCELROY, Plaintiff,
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
GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE.
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.
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
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.
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. 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  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. 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
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 ...