Smith v. Fu ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JASON SMITH, 11 Case No. 19-02119 BLF (PR) Plaintiff, 12 ORDER DIRECTING CLERK TO v. ISSUE SUMMONS AND MARSHAL 13 TO SERVE COMPLAINT ON DEFENDANT RACHEL ROSS; 14 DR. LAW FU, et al., DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR 15 Defendants. NOTICE REGARDING SUCH MOTION 16 17 18 Plaintiff, a state prisoner at the Correctional Training Facility (“CTF”) in Soledad, 19 filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against CTF 20 personnel. The Court found the complaint stated a cognizable claim under the Eighth 21 Amendment for deliberate indifference to serious medical needs, and granted Plaintiff 22 leave to amend to attempt to state sufficient facts to state a First Amendment claim. Dkt. 23 No. 4. After Plaintiff filed notice that he wished to proceed solely on the Eighth 24 Amendment claim, the Court ordered the matter served on Defendants. Dkt. No. 6. All 25 Defendants except for Defendant Rachel Ross appeared in this matter, and after full 26 briefing, all claims against them have been dismissed. Dkt. Nos. 51, 52. Only the claim 27 against Defendant Ross remains. 1 2019, Dkt. No. 8, which was returned as undeliverable with a notation that Defendant Ross 2 was no longer with CTF. Dkt. No. 13. Plaintiff was directed to provide a current address 3 for Defendant Ross, which he did on December 2, 2019. Dkt. Nos. 16, 20. On December 4 6, 2019, the Clerk resent a request for waiver of service to Defendant Ross at the following 5 address: 2941 Sunrise Blvd., Suite 210, Rancho Cordova, CA 95742. Dkt. No. 22. To 6 date, there has been no response from Defendant Ross or any indication that she received 7 the request for waiver of service. Accordingly, the Court will order the Marshal to 8 formally serve the matter on Defendant Ross at the address provided by Plaintiff. 9 10 DISCUSSION 11 A. Standard of Review 12 A federal court must conduct a preliminary screening in any case in which a 13 prisoner seeks redress from a governmental entity or officer or employee of a 14 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 15 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 16 upon which relief may be granted or seek monetary relief from a defendant who is immune 17 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 18 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 19 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 20 elements: (1) that a right secured by the Constitution or laws of the United States was 21 violated, and (2) that the alleged violation was committed by a person acting under the 22 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 23 B. Plaintiff’s Claims 24 The Court found the complaint stated cognizable claims based on the following 25 allegations. The specific allegations against Defendant Ross are in bold: 26 Plaintiff claims that he is a “chronic care patient” with osteo arthritis (Compl. Attach. at 5.) He had a prescription for 15mg of methadone since 1 July 2015. (Id.) On July 25, 2018, Plaintiff was transported to Twin City 2 Medical Community for a recommended “orthopedic consultation/evaluation.” (Id.) Upon his arrival, Plaintiff was directed to 3 sign a waiver of liability and consent to videotaping surgery, among other things, before receiving treatment. (Id. at 5-6.) When Plaintiff declined to 4 sign the document, he was denied medical treatment by Defendant Dr. 5 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 6 Plaintiff claims informed him that he was taking Plaintiff off methadone 7 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 8 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 9 some “low level medications” to manage his withdrawal symptoms 10 from methadone. (Id. at 7-8.) Plaintiff alleges that Defendant Ross told him that he “should have just signed the waiver form when you 11 went to see defendant Dr. Kowall on 07/25/18, now you could smoke all 12 the marijuana you want to.” (Id. at 8.) Defendant Ross only prescribed capsaicin cream, which only inflamed Plaintiff’s right 13 shoulder injury. (Id.) On August 15, 2018, Plaintiff filed an “emergency appeal” in an effort to have medical staff intervene and stop the withdrawal 14 symptoms that he was experiencing, including headaches, dizziness, 15 cramps, diarrhea, etc. (Id.) Plaintiff claims that Defendant M. Votaw, the prison health care grievance office representative, “deliberately ignored a 16 serious medical need, by bypassing an emergency screening which lead to 17 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. 18 Posson, the Chief Medical Executive, delayed recommended physical therapy until January 24, 2019. (Id.) Plaintiff claims that Defendants’ 19 actions amounted to retaliation under the First Amendment and deliberate 20 indifference to serious medical needs under the Eighth Amendment. (Id. at 2.) Liberally construed, Plaintiff’s allegations are sufficient to state an 21 Eighth Amendment claim for deliberate indifference to serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 22 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part on other grounds by 23 WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). 24 25 Dkt. No. 6 at 2-3. 26 CONCLUSION 1 1. The Clerk of the Court shall issue summons and the Unites States Marshal 2 shall serve, without prepayment of fees, a copy of the complaint, Dkt. No. 1, all 3 attachments thereto, and a copy of this order upon Defendant Dr. Rachel Ross at 2941 4 Sunrise Blvd., Suite 210, Rancho Cordova, CA 95742. The Clerk shall also mail a copy 5 of this Order to Plaintiff. 6 Defendant Ross is advised to contact the Attorney General’s Office1 for possible 7 representation in this action. 8 2. No later than ninety-one (91) days from the date this order is filed, 9 Defendant shall file a motion for summary judgment or other dispositive motion with 10 respect to the claims in the amended complaint found to be cognizable above. 11 a. Any motion for summary judgment shall be supported by adequate 12 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 13 Civil Procedure. Defendant is advised that summary judgment cannot be granted, nor 14 qualified immunity found, if material facts are in dispute. If Defendant is of the opinion 15 that this case cannot be resolved by summary judgment, she shall so inform the Court prior 16 to the date the summary judgment motion is due. 17 b. In the event Defendant files a motion for summary judgment, the 18 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 19 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 20 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 21 3. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 22 and served on Defendant no later than twenty-eight (28) days from the date Defendant’s 23 motion is filed. 24 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 25 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 26 1 || must come forward with evidence showing triable issues of material fact on every essential 2 || element of his claim). Plaintiff is cautioned that failure to file an opposition to 3 || Defendant’s motion for summary judgment may be deemed to be a consent by Plaintiff to 4 || the granting of the motion, and granting of judgment against Plaintiff without a trial. See 5 Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 6 || F.3d 651, 653 (9th Cir. 1994). 7 4. Defendant shall file a reply brief no later than fourteen (14) days after 8 || Plaintiff's opposition is filed. 9 5. The motion shall be deemed submitted as of the date the reply brief is due. 10 || No hearing will be held on the motion unless the Court so orders at a later date. 11 6. All communications by the Plaintiff with the Court must be served on 22 Defendant, or Defendant’s counsel once counsel has been designated, by mailing a true 5 13 || copy of the document to Defendants or Defendants’ counsel. S 14 7. Discovery may be taken in accordance with the Federal Rules of Civil 15 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 16 || Rule 16-1 is required before the parties may conduct discovery. 5 17 8. It is Plaintiffs responsibility to prosecute this case. Plaintiff must keep the 18 || court informed of any change of address and must comply with the court’s orders in a 19 || timely fashion. Failure to do so may result in the dismissal of this action for failure to 20 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 9. Extensions of time must be filed no later than the deadline sought to be 22 || extended and must be accompanied by a showing of good cause. 23 IT IS SO ORDERED. 24 || Dated: _ September 22, 2020___ 05 BETH LABSON FREEMAN United States District Judge 26 || Order of Service PRO-SE\BLF\CR.19\02119Smith_svc.Ross 27