United States District Court, E.D. California
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.
to 42 U.S.C. § 1997e(g)(1),  defendant Jeffrey Rohlfing,
through counsel, waives his right to reply to the First
Amended Complaint (FAC) filed by plaintiff, a state prisoner,
on April 22, 2019. Pursuant to 42 U.S.C. § 1997e(g)(2)
and the reasons set forth below, defendant Rohlfing is
directed to file a reply to the FAC.
October 2, 2019 this court directed the United States Marshal
to serve a copy of the summons, FAC and related materials on
four defendants, including CDCR physician Rohlfing. ECF No.
21. Rohlfing states that he received service on November 1,
2019. ECF No. 24 at 1. No other defendant has yet appeared in
U.S.C. § 1997e(g)(1) provides:
Any defendant may waive the right to reply to any action
brought by a prisoner confined in any jail, prison, or other
correctional facility under section 1983 of this title or any
other Federal law. Notwithstanding any other law or rule of
procedure, such waiver shall not constitute an admission of
the allegations contained in the complaint. No relief shall
be granted to the plaintiff unless a reply has been filed.
42 U.S.C. § 1997e(g)(2), “[t]he court may require
any defendant to reply to a complaint brought under this
section if it finds that the plaintiff has a reasonable
opportunity to prevail on the merits.”
court's screening of this case pursuant to 42 U.S.C.
§ 1997(c), particularly its analysis of plaintiff's
allegations against defendant Rohlfing, demonstrated that
plaintiff has a reasonable opportunity to prevail on the
merits of his Eighth Amendment medical deliberate
indifference claim against Rohlfing. The court stated in
pertinent, ECF No. 18 at 4-6:
Defendant Dr. Jeffrey Rolfing,  a CDCR physician at HDSP,
provided plaintiff's aftercare. Plaintiff alleges that
upon his return to HDSP after surgery, Dr. Rolfing “was
deliberately indifferent to my serious medical needs when he
refused to change my filthy dressings.” ECF No. 15 at
5. Plaintiff alleges that his surgical site became infected
as a result of the allegedly defective hernia mesh, yet Dr.
Rolfing refused to treat it, “making plaintiff change
dressings and do self care due to no alternative.”
Id. More specifically, plaintiff alleges,
id. (with minor edits):
Doctor Rolfing stated to plaintiff: We don't change the
dressings. We let them fall off on their own. This was after
plaintiff told Dr. Rolfing that plaintiff was forced to put
toilet paper over the open stomach wound which was oozing
infectious pus, as the original surgical dressing was filled
with infected pus. Plaintiff knew that he wasn't going to
receive any help from Dr. Rolfing, so he told him to give
plaintiff dressing so he could self care. This caused the
infection to rage in plaintiff for 6-8 months, and the
surgical incision site would not close for over 90 days. This
caused permanent nerve & tissue damages, pain and
suffering. . . . chronic, intractable pain & suffering,
requiring life-long pain medications, which is worsening as
time passes. Plaintiff suffers from mental pain &
emotional suffering due to the unrelenting burning nerve pain
& damages, w/sleep deprivation, daily life function
impairment via cognitive disabilities, mobility impairment,
The court finds plaintiffs allegations against defendant
Rolfing sufficient to state a cognizable Eighth Amendment
claim for deliberate indifference to plaintiffs serious
medical needs. Specifically, a viable claim is stated by the
allegations that Dr. Rolfing knowingly refused to treat
plaintiffs open, pus-filled surgical site, resulting in a
prolonged infection of the site, scarring, and chronic pain.
See Farmer v. Brennan, 511 U.S. 825, 845, 847 (1994)
(a prison official acts with deliberate indifference if
"he knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take
reasonable measures to abate it"). Although further
development of the facts may show that plaintiffs decision to
"self care" deprived Dr. Rolfing of a reasonable
opportunity to assess the seriousness of plaintiffs medical
needs and/or to treat those needs, the allegations as framed
are sufficient to state an Eighth Amendment deliberate
indifference claim against Rolfing.
the statutory option of a defendant in a prisoner civil
rights actions to waive his or her right to reply, it is the
policy of this court to routinely require such replies, as
demonstrated by the language of the court's recently
adopted Electronic Service orders (directing that "[i]f
a defendant waives service or is personally served, he will
be required to reply to the complaint. 42 U.S.C. §
l997e(g)(2)."). Moreover, the Ninth Circuit Court of
Appeals has expressly urged district courts to require
replies from defendants in prisoner civil rights cases
"to the aid the court" in its determinations.
See e.g. Turner v. Morris, 165 F.3d 918 (9th Cir.
1998) (Table), 1998 WL 833616 (9th Cir. 1998).
IT IS HEREBY ORDERED that defendant Rohlfing shall file and
serve his reply to plaintiffs First Amended Complaint within
twenty-one (21) days after the filing date of this order.