(PC) Quezada v. Akabike ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALVARO QUEZADA, Case No. 1:18-cv-00797-DAD-JLT (PC) 12 Plaintiff, ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS AND 13 v. DIRECTING PLAINTIFF TO FILE A THIRD AMENDED COMPLAINT 14 SHERMAN, et al., (Doc. 23) 15 Defendants. 21-DAY DEADLINE 16 17 On November 18, 2019, the Court issued findings and recommendations to dismiss this 18 action for failure to state a claim on which relief can be granted. (Doc. 23.) Plaintiff filed 19 objections to the findings and recommendations on January 10, 2020. (Doc. 26.) 20 In his objections, Plaintiff provides additional factual allegations related to his deliberate 21 indifference and retaliation claims. For example, he alleges that a defendant had firsthand 22 knowledge of Plaintiff’s medical condition or disability, given that he observed Plaintiff 23 struggling to walk and being assisted by his cellmate on a daily basis. (Id. at 19.) This allegation, 24 coupled with Plaintiff’s fall on the morning of June 28, 2017, may show that the defendant was 25 aware of a substantial risk of serious harm to Plaintiff when he forced him to walk down the stairs 26 during the afternoon of June 28, 2017. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). 27 Additionally, Plaintiff alleges that, as soon as he transferred to R.J. Donavan Correctional Facility, his doctor provided him adequate pain medication and accommodations that were 1 repeatedly denied by his doctor at Substance Abuse Treatment Facility, Corcoran. (Doc. 26 at 4.) 2 Though mere differences in medical opinion are insufficient to state a claim under the Eighth 3 Amendment, see Estelle v. Gamble, 429 U.S. 97, 106 (1976), the allegation that Plaintiff 4 repeatedly complained to his doctor at SATF that his medication and accommodations were 5 inadequate, (see Doc. 26 at 4), coupled with the immediate provision of adequate medication and 6 accommodations at RJDCF, may show that the SATF doctor was deliberately indifferent to his 7 pain or condition. 8 Plaintiff also alleges that, when he requested to be moved to a lower-tier cell due to his 9 condition or disability, a defendant officer moved his cellmate instead, even though the cellmate 10 is able-bodied and assisted Plaintiff with his movements (see above). (Id. at 9.) The defendant 11 then asserted in a subsequent rules violation report against Plaintiff that no lower-tier bunks were 12 available, even though he had just moved Plaintiff’s cellmate to one such bunk. (Id. at 12.) These 13 inconsistencies, if true, are evidence of ill-intent. 14 In addition to providing the factual allegations above, Plaintiff states that the Court did not 15 screen his claim under the Americans with Disabilities Act (ADA). (See id. at 1.) Under “Claim 16 1” of his complaint, Plaintiff states, “Plaintiff will bring two legal claims under the … 8th 17 Amendment cause of actions and a 1st Amendment cause of actions [sic].” (Id. at 6.) Under 18 “Claim 2” of his complaint, Plaintiff states, “1st Amendment rights were violated.” (Id. at 22.) 19 Based on these statements, the Court found that Plaintiff only raised claims under the First and 20 Eighth amendments. However, the Court acknowledges that Plaintiff mentions the ADA under 21 the “Supporting Facts” of Claim 1. (Doc. 22 at 9, 11, 17.) 22 For the reasons above, the Court WITHDRAWS its findings and recommendations (Doc. 23 23) and ORDERS Plaintiff to file a third amended complaint within 21 days of the date of 24 service of this order. The Clerk of the Court is DIRECTED to send Plaintiff a civil rights 25 complaint form. The amended complaint should include the factual allegations listed above and 26 must cure the deficiencies identified in the Court’s findings and recommendations (Doc. 23).1 If 27 1 The Court notes that, even with his additional allegations, Plaintiff does not state a cognizable claim of supervisory 1 Plaintiff wishes to raise an independent claim under the ADA, he must explicitly do so in his 2 amended complaint. 3 As stated in the Court’s screening order (Doc. 19), Plaintiff SHALL LIMIT his complaint 4 to 20 pages or less and SHALL NOT include exhibits. In addition, Plaintiff shall provide only 5 facts; he should not provide legal arguments. If Plaintiff fails to comply with this order, the 6 Court may recommend that this case be dismissed for Plaintiff’s failure to obey court 7 orders. 8 IT IS SO ORDERED. 9 10 Dated: February 6, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 see Farmer v. Brennan, 511 U.S. 825, 837 (1994); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004); Johnson 27 v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978), or that the warden was on actual notice of a pattern or practice of constitutional violations, such that his failures to act, train, or discipline constituted approval or acquiescence to such