United States District Court, N.D. California
ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE
DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION;
INSTRUCTIONS TO CLERK
LABSON FREEMAN United States District Judge
a state prisoner at the Correctional Training Facility
(“CTF”) in Soledad, filed the instant pro
se civil rights action pursuant to 42 U.S.C. § 1983
against CTF personnel. After an initial review, the Court
found the complaint stated a cognizable claim under the
Eighth Amendment for deliberate indifference to serious
medical needs. (Docket No. 4.) In the same order, Plaintiff
was granted leave to attempt to file an amended complaint to
state sufficient facts to state a First Amendment claim.
(Id.) Plaintiff has filed notice that he wishes to
proceed solely on the Eighth Amendment claim. (Docket No. 5.)
Accordingly, this matter shall proceed solely on the Eighth
Amendment medical claim, and the First Amendment claim shall
be stricken from the complaint.
Standard of Review
federal court must conduct a preliminary screening in any
case in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.
See 28 U.S.C. § 1915A(a). In its review, the
court must identify any cognizable claims and dismiss any
claims that are frivolous, malicious, fail to state a claim
upon which relief may be granted or seek monetary relief from
a defendant who is immune from such relief. See Id.
§ 1915A(b)(1), (2). Pro se pleadings must, however, be
liberally construed. See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged violation was committed by a person
acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988).
claims that he is a “chronic care patient” with
osteo arthritis in his right shoulder which is associated
with chronic pain since July 2015. (Compl. Attach. at 5.) He
had a prescription for 15mg of methadone since July 2015.
(Id.) On July 25, 2018, Plaintiff was transported to
Twin City Medical Community for a recommended
(Id.) Upon his arrival, Plaintiff was directed to
sign a waiver of liability and consent to videotaping
surgery, among other things, before receiving treatment.
(Id. at 5-6.) When Plaintiff declined to sign the
document, he was denied medical treatment by Defendant Dr.
Kowall, the orthopedic specialist whom he was scheduled to
see. (Id. at 6.) On July 29, 2019, Plaintiff was
seen by Defendant D. Fu Law, whom Plaintiff claims informed
him that he was taking Plaintiff off methadone because
Plaintiff had refused to sign the document presented to him
by Dr. Kowall on July 25, 2019. (Id. at 6-7.)
Subsequently, Plaintiff's 15mg methadone prescription was
reduced to 5 mg per day. (Id. at 7.) When Plaintiff
met with Defendant Dr. Ross on August 6, 2018, he requested
some “low level medications” to manage his
withdrawal symptoms from methadone. (Id. at 7-8.)
Plaintiff alleges that Defendant Ross told him that he
“should have just signed the waiver form when you went
to see defendant Dr. Kowall on 07/25/18, now you could smoke
all the marijuana you want to.” (Id. at 8.)
Defendant Ross only prescribed capsaicin cream, which only
inflamed Plaintiff's right shoulder injury.
(Id.) On August 15, 2018, Plaintiff filed an
“emergency appeal” in an effort to have medical
staff intervene and stop the withdrawal symptoms that he was
experiencing, including headaches, dizziness, cramps,
diarrhea, etc. (Id.) Plaintiff claims that Defendant
M. Votaw, the prison health care grievance office
representative, “deliberately ignored a serious medical
need, by bypassing an emergency screening which lead to
extended suffering of withdrawal symptoms for up to two weeks
as a result of defendant M. Votaw's inaction.”
(Id.) Plaintiff claims that Defendant S. Posson, the
Chief Medical Executive, delayed recommended physical therapy
until January 24, 2019. (Id.) Plaintiff claims that
Defendants' actions amounted to retaliation under the
First Amendment and deliberate indifference to serious
medical needs under the Eighth Amendment. (Id. at
2.) Liberally construed, Plaintiff's allegations are
sufficient to state an Eighth Amendment claim for deliberate
indifference to serious medical needs. See Estelle v.
Gamble, 429 U.S. 97, 104 (1976); McGuckin v.
Smith, 974 F.2d 1050, 1059 (9th Cir. 1992),
overruled in part on other grounds by WMX Technologies,
Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en
reasons state above, the Court orders as follows:
1. The Clerk of the Court shall mail a Notice of Lawsuit and
Request for Waiver of Service of Summons, two copies of the
Waiver of Service of Summons, a copy of the complaint, all
attachments thereto, and a copy of this order upon
Defendants Dr. Law Fu, Dr. Rachel Ross, Dr. Kowall,
M. Votaw, and S. Posson at the
Correctional Training Facility (P.O.
Box 686, Soledad, CA 93960-0686). The Clerk shall
also mail a copy of this Order to Plaintiff.
Defendants are cautioned that Rule 4 of the Federal Rules of
Civil Procedure requires them to cooperate in saving
unnecessary costs of service of the summons and the amended
complaint. Pursuant to Rule 4, if Defendants, after being
notified of this action and asked by the Court, on behalf of
Plaintiff, to waive service of the summons, fail to do so,
they will be required to bear the cost of such service unless
good cause shown for their failure to sign and return the
waiver form. If service is waived, this action will proceed
as if Defendants had been served on the date that the waiver
is filed, except that pursuant to Rule 12(a)(1)(B),
Defendants will not be required to serve and file an answer
before sixty (60) days from the day on which
the request for waiver was sent. (This allows a longer time
to respond than would be required if formal service of
summons is necessary.) Defendants are asked to read the
statement set forth at the foot of the waiver form that more
completely describes the duties of the parties with regard to
waiver of service of the summons. If service is waived after
the date provided in the Notice but before Defendants have
been personally served, the Answer shall be due sixty (60)
days from the date on which the request for waiver was sent
or twenty (20) days from the date the waiver form is filed,
whichever is later.
later than ninety-one (91) days from the
date this order is filed, Defendants shall file a motion for
summary judgment or other dispositive motion with respect to
the claims in the amended complaint found to be cognizable
a. Any motion for summary judgment shall be supported by
adequate factual documentation and shall conform in all
respects to Rule 56 of the Federal Rules of Civil Procedure.
Defendants are advised that summary judgment cannot be
granted, nor qualified immunity found, if material facts are
in dispute. If any Defendant is of the opinion that this case
cannot be resolved by summary ...