Stuckey v. Risenhoover ( 2020 )

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 ANDRE KENNETH STUCKEY, 4 Case No. 19-cv-03780-YGR (PR) Plaintiff, 5 ORDER DISMISSING CERTAIN v. CLAIMS WITHOUT PREJUDICE TO 6 FILING IN EASTERN DISTRICT; BILL WOODS, et al., SERVING COGNIZABLE CLAIMS; 7 AND DISMISSING REMAINING Defendants. CLAIMS 8 9 I. INTRODUCTION 10 Plaintiff, a state prisoner currently incarcerated at Pelican Bay State Prison (“PBSP”) filed 11 a pro se civil rights action pursuant to 42 U.S.C. § 1983. Dkt. 1. He seeks monetary damages. 12 He has been granted leave to proceed in forma pauperis. Dkt. 8. 13 Plaintiff has named the following Defendants at PBSP: Chief Executive Office (“CEO”) at 14 the California Correctional Health Care Services (“CCHCS”) Bill Woods; Chief of Health Care at 15 CCHCS S. Gates; and Doctors Sue Risenhoover, Maria Bostanjian, Devinder Kumar, and Laurie 16 Thomas. He also names the following Defendants at Kern Valley State Prison (“KVSP”) Doctors 17 Theodore D. Utecht, Jonathan Akanno, and L. Krzysiak. 18 The Court now conducts its initial review of the Complaint pursuant to 28 U.S.C. § 1915A. 19 Venue is proper because the events giving rise to some of the claims in his Complaint are 20 alleged to have occurred at PBSP, which is located in this judicial district. See 28 U.S.C. 21 § 1391(b). 22 II. DISCUSSION 23 A. Standard of Review 24 A federal court must engage in a preliminary screening of any case in which a prisoner 25 seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 26 U.S.C. § 1915A(a). The court must identify any cognizable claims, and dismiss any claims which 27 are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary 1 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 2 right secured by the Constitution or laws of the United States was violated and (2) that the 3 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 4 U.S. 42, 48 (1988). 5 B. Legal Claims 6 1. Claims Against Defendants at KVSP 7 Plaintiff complains of various problems during his incarceration at KVSP. Because KVSP 8 is located within the venue of the Eastern District of California, these claims are DISMISSED 9 without prejudice to Plaintiff refiling them in a new civil rights action in the United States District 10 Court for the Eastern District of California. See In re Hall, 939 F.2d 802, 804 (9th Cir. 1991) 11 (dismissal on venue grounds without prejudice). 12 2. Remaining Claims Against Defendants at PBSP 13 In his Complaint, Plaintiff alleges that (1) Defendants Risenhoover, Bostanjian, Kumar, 14 and Thomas delayed for seven years “in treating the Plaintiff’s mild peripheral blood 15 eosinophilia,” which “has resulted in the extensive degeneration of his colon . . . ;” and 16 (2) Defendants Risenhoover, Bostanjian, Kumar, Thomas, Woods and Gates delayed for four 17 years in “evaluating and treating the Plaintiff[’s] elevated bilirubin level,” which “le[d] to a 18 negative reaction to supplements, fingernail discoloration, d[e]formaties, infections and pain . . . .” 19 Dkt. 1 at 5-17.1 20 Plaintiff has sued all named Defendants individually and in their official capacities seeking 21 monetary relief. Dkt. 1 at 1. “[A]n official-capacity suit is, in all respects other than name, to be 22 treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). Unless 23 waived, the Eleventh Amendment bars a federal court award of damages against a state, state 24 agency, or state official sued in an official capacity. Id. at 169. As there has been no waiver here, 25 Plaintiff’s claims against the named Defendants in their official capacities for monetary damages 26 is DISMISSED with prejudice. 27 1 2 Plaintiff names Defendants Woods (the CEO of the CCHCS) and Gates (Chief of Health 3 Care at CCHCS), but Plaintiff does not claim that these Defendants personally violated his 4 constitutional rights. Rather, Plaintiff seems to contend that these Defendants are liable based on 5 the conduct of their subordinates—the remaining Defendants named above. Respondeat superior 6 liability is not available under section 1983. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 7 1989). Instead, Plaintiff must allege that the supervisory liability Defendants “participated in or 8 directed the violations, or knew of the violations and failed to act to prevent them.” Id. Here, no 9 facts are alleged to establish supervisorial liability on the part of Defendants Woods and Gates. 10 Accordingly, Plaintiff’s supervisory liability claims against Defendants Woods and Gates are 11 DISMISSED without prejudice. 12 Meanwhile, Claim 1 and 2 against the remaining Defendants, when liberally construed, are 13 cognizable under section 1983 and shall proceed. 14 III. CONCLUSION 15 For the foregoing reasons, the Court orders as follows: 16 1. Plaintiff’s claims relating to all problems during his incarceration at KVSP are 17 DISMISSED WITHOUT PREJUDICE to Plaintiff refiling them in a new civil rights action in the 18 United States District Court for the Eastern District of California. 19 2. Plaintiff’s claims against the remaining named Defendants in their official 20 capacities for monetary damages are DISMISSED with prejudice. 21 3. Plaintiff’s supervisory liability claims against Defendants Woods and Gates are 22 DISMISSED without prejudice. 23 4. Claims 1 and 2 against the remaining Defendants have been found to be 24 cognizable, as described above. 25 5. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of 26 Service of Summons, two copies of the Waiver of Service of Summons, a copy of the Complaint 27 and all attachments thereto, (dkt. 1) and a copy of this Order to the following Defendants at PBSP: 1 Clerk shall also mail a copy of the Complaint and a copy of this Order to the California State 2 Attorney General’s Office. Additionally, the Clerk shall mail a copy of this Order to Plaintiff. 3 6. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 4 requires them to cooperate in saving unnecessary costs of service of the summons and complaint. 5 Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the Court, on 6 behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the 7 cost of such service unless good cause be shown for their failure to sign and return the waiver 8 form. If service is waived, this action will proceed as if Defendants had been served on the date 9 that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required 10 to serve and file an answer before sixty (60) days from the date on which the request for waiver 11 was sent. (This allows a longer time to respond than would be required if formal service of 12 summons is necessary.) Defendants are asked to read the statement set forth at the foot of the 13 waiver form that more completely describes the duties of the parties with regard to waiver of 14 service of the summons. If service is waived after the date provided in the Notice but before 15 Defendants have been personally served, the Answer shall be due sixty (60) days from the date on 16 which the request for waiver was sent or twenty (20) days from the date the waiver form is filed, 17 whichever is later. 18 7. Defendants shall answer the Complaint in accordance with the Federal Rules of 19 Civil Procedure. The following briefing schedule shall govern dispositive motions in this action: 20 a. No later than sixty (60) days from the date their answer is due, Defendants 21 shall file a motion for summary judgment or other dispositive motion. The motion must be 22 supported by adequate factual documentation, must conform in all respects to Federal Rule of 23 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from 24 the events at issue. A motion for summary judgment also must be accompanied by a Rand2 notice 25 so that Plaintiff will have fair, timely and adequate notice of what is required of him in order to 26 oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out 27 1 in Rand must be served concurrently with motion for summary judgment). A motion to dismiss 2 for failure to exhaust available administrative remedies must be accompanied by a similar notice. 3 However, the Court notes that under the new law of the circuit, in the rare event that a failure to 4 exhaust is clear on the face of the complaint, Defendants may move for dismissal under Rule 5 12(b)(6) as opposed to the previous practice of moving under an unenumerated Rule 12(b) motion. 6 Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc) (overruling Wyatt v. Terhune, 315 7 F.3d 1108, 1119 (9th Cir. 2003), which held that failure to exhaust available administrative 8 remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”), should be 9 raised by a defendant as an unenumerated Rule 12(b) motion). Otherwise if a failure to exhaust is 10 not clear on the face of the complaint, Defendants must produce evidence proving failure to 11 exhaust in a motion for summary judgment under Rule 56. Id. If undisputed evidence viewed in 12 the light most favorable to Plaintiff shows a failure to exhaust, Defendants are entitled to summary 13 judgment under Rule 56. Id. But if material facts are disputed, summary judgment should be 14 denied and the district judge rather than a jury should determine the facts in a preliminary 15 proceeding. Id. at 1168. 16 If Defendants are of the opinion that this case cannot be resolved by summary judgment, 17 they shall so inform the Court prior to the date the summary judgment motion is due. All papers 18 filed with the Court shall be promptly served on Plaintiff. 19 b. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 20 and served on Defendants no later than twenty-eight (28) days after the date on which 21 Defendants’ motion is filed. 22 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of 23 the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 24 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 25 be granted when there is no genuine issue of material fact -- that is, if there is no real dispute about 26 any fact that would affect the result of your case, the party who asked for summary judgment is 27 entitled to judgment as a matter of law, which will end your case. When a party you are suing 1 testimony), you cannot simply rely on what your Complaint says. Instead, you must set out 2 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 3 as provided in Rule 56(e), that contradicts the facts shown in the defendant’s declarations and 4 documents and show that there is a genuine issue of material fact for trial. If you do not submit 5 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 6 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 7 F.3d at 962-63. 8 Plaintiff also is advised that -- in the rare event that Defendants argue that the failure to 9 exhaust is clear on the face of the Complaint -- a motion to dismiss for failure to exhaust available 10 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 11 prejudice. To avoid dismissal, you have the right to present any evidence to show that you did 12 exhaust your available administrative remedies before coming to federal court. Such evidence 13 may include: (1) declarations, which are statements signed under penalty of perjury by you or 14 others who have personal knowledge of relevant matters; (2) authenticated documents -- 15 documents accompanied by a declaration showing where they came from and why they are 16 authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements 17 in your Complaint insofar as they were made under penalty of perjury and they show that you 18 have personal knowledge of the matters state therein. As mentioned above, in considering a 19 motion to dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary 20 judgment motion under Rule 56, the district judge may hold a preliminary proceeding and decide 21 disputed issues of fact with regard to this portion of the case. Albino, 747 F.3d at 1168. 22 (The notices above do not excuse Defendants’ obligation to serve similar notices again 23 concurrently with motions to dismiss for failure to exhaust available administrative remedies and 24 motions for summary judgment. Woods, 684 F.3d at 935.) 25 d. Defendants shall file a reply brief no later than fourteen (14) days after the 26 date Plaintiff’s opposition is filed. 27 e. The motion shall be deemed submitted as of the date the reply brief is due. 1 8. Discovery may be taken in this action in accordance with the Federal Rules of Civil 2 || Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to 3 depose Plaintiff and any other necessary witnesses confined in prison. 4 9. All communications by Plaintiff with the Court must be served on Defendants or 5 their counsel, once counsel has been designated, by mailing a true copy of the document to them. 6 10. _—_—It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 7 || informed of any change of address and must comply with the Court’s orders in a timely fashion. 8 Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes 9 while an action is pending must promptly file a notice of change of address specifying the new 10 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 11 directed to the pro se party by the Court has been returned to the Court as not deliverable, and 12 (2) the Court fails to receive within sixty days of this return a written communication from the pro 5 13 se party indicating a current address. See L.R. 3-11(b). 14 11. Upon a showing of good cause, requests for a reasonable extension of time will be 3 15 granted provided they are filed on or before the deadline they seek to extend. a 16 IT IS SO ORDERED. 3 17 Dated: January 31, 2020 Loypent Haptrlflecs— VONNE GONZALEZ ROGER: 19 United States District Judge 20 21 22 23 24 25 26 27 28