Lakota v. Allen ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DANNY STRONGBEAR LAKOTA, Case No. 22-cv-04304-TLT 8 Plaintiff, ORDER REOPENING CASE; 9 v. OF SERVICE 10 T. ALLEN, et al., Defendants. 11 12 13 Plaintiff, a prisoner at Salinas Valley State Prison (SVSP), filed a pro se complaint under 14 42 U.S.C. § 1983 alleging that a number of SVSP medical and correctional staff failed to prevent a 15 COVID-19 outbreak, during which plaintiff became infected, and failed to provide him 16 appropriate treatment for COVID-19 and subsequent pneumonia. ECF 1. He also alleged that 17 various SVSP correctional defendants failed to protect him from extortion and assault by other 18 prisoners. Id. The Court dismissed plaintiff’s complaint with leave to amend to include only 19 related claims. ECF 6. In the absence of an amended complaint, the Court subsequently 20 dismissed the case without prejudice and entered judgment for defendants. ECF 8, 9. The Court 21 subsequently learned from plaintiff’s letter that plaintiff had intended to file an amended 22 complaint in this case that was not docketed as such because he did not include the case number. 23 See ECF 10, 11. Plaintiff’s First Amended Complaint (FAC) has now been docketed at ECF 11. 24 The Court hereby REOPENS the case, and the FAC is now before the Court for screening 25 pursuant to 28 U.S.C. § 1915A. 26 DISCUSSION 27 A. Standard of Review 1 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 2 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 3 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 4 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 5 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 6 989, 993 (9th Cir. 2020). 7 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 8 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 9 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 10 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 11 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 12 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 13 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 14 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 15 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 16 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 17 alleged violation was committed by a person acting under the color of state law. See West v. 18 Atkins, 487 U.S. 42, 48 (1988). 19 B. Plaintiff’s Allegations 20 Plaintiff’s FAC alleges that on December 13, 2020, ten prisoners tested positive for 21 COVID-19 at SVSP and were released for yard recreation rather than isolated. ECF 11 at 4. As a 22 result, there was a mass outbreak in building 4 that caused plaintiff to become infected. He alleges 23 that A. Halstead, SRN II, and G.R. Padilla, CEO “are directly responsible . . . for failing to 24 perform their medical duties to lock down and isolate the infected environment.” Id. 25 Plaintiff alleges that Nurse Nancy (Serrato) and Officer Covarrubias took no action when 26 he informed them he was infected with COVID-19, and discouraged him from submitting a 7362 27 medical request form. The Jane Doe nurse doing temperature checks also took no action after 1 incapacitation from COVID and “was essentially left for dead.” Id. at 5. Plaintiff submitted a 2 7362 to defendant Su on December 24, 2020, telling him that he could not breathe, but defendant 3 Su refused to help. He also asked defendant nurse Serrato for help the next morning, and she took 4 no action. Defendant Serrato informed plaintiff that defendant Su was throwing away his 7362 5 forms. Plaintiff asked defendant nurse Kauffman for help on January 5, 2021, but she refused to 6 press the alarm, in part at the instruction of defendant Covarrubias. On January 6, plaintiff went 7 man down. Id. at 6. Defendant nurse John Doe responded after 10 minutes and told plaintiff to 8 use his inhaler, “leaving [him] gasping for air.” 9 After collapsing in the pill call line, plaintiff was taken to treatment and triage (TTA), 10 where x-rays of his lungs showed pneumonia. The defendant TTA doctor John Doe 2 prescribed 11 antibiotics and refused plaintiff “any form of breathing treatment.” Defendant doctor John Doe 1 12 also refused to provide plaintiff with oxygen or any breathing assistance. Both doctors committed 13 medical malpractice and were deliberately indifferent, as post-COVID pneumonia is viral 14 pneumonia that is not responsive to antibiotics, and should have been treated with oxygen. 15 Neither doctor tested plaintiff to find out what kind of pneumonia he had. Id. 16 In May of 2022, while in the administrative segregation unit at Mule Creek State Prison 17 (MCSP), he was sent to a lung expert at Stockton Hospital, who determined that he has permanent 18 lung damage resulting from his COVID infection and pneumonia. Id. at 7. 19 Plaintiff alleges that defendants Halstead, Padilla, Serrato, Covarrubias, Su, Kauffman, 20 Nurse Jane Doe, Nurse John Doe, Doctor John Doe 1, and Doctor John Doe 2 violated his Eighth 21 Amendment rights by acting with deliberate indifference to his serious medical needs. He seeks 22 declaratory relief and monetary damages. Id. at 10. 23 C. Analysis 24 As plaintiff has made no allegations against defendant Warden Allen, he is DISMISSED. 25 Liberally construed, plaintiff’s complaint states an Eighth Amendment claim against 26 defendants Halstead and Padilla for deliberate indifference to his safety. Farmer v. Brennan, 511 27 U.S. 825, 837 (1994) (prison official is deliberately indifferent if he or she knows that prisoner 1 abate it). Plaintiff also states an Eighth Amendment claim against the remaining defendants for 2 failing to provide, or preventing him from receiving, constitutionally adequate medical care. 3 Although the use of “Doe” to identify a defendant is not favored in the Ninth Circuit, see 4 Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), situations may arise where the identity of 5 alleged defendants cannot be known prior to the filing of a complaint. In such circumstances, the 6 Ninth Circuit directs district courts to give the plaintiff an opportunity through discovery to 7 identify the unknown defendants, unless it is clear that discovery would not uncover their 8 identities or that the complaint should be dismissed on other grounds. See id. Failure to afford the 9 plaintiff such an opportunity is error. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 10 1999); see also Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (abuse of discretion to 11 deny plaintiff an opportunity to amend to name correct defendants). Plaintiff has presented 12 sufficient allegations against Nurse Jane Doe, Nurse John Doe, and Doctors John Doe 1 and 2, and 13 it appears that the identity of these defendants could be determined through discovery as there are 14 precise dates and locations where the incidents involving them occurred. It is plaintiff’s 15 responsibility to use discovery to identify the Doe defendants by name once the other defendants 16 have been served. Plaintiff shall identify the Doe defendants by the time his opposition to 17 defendants’ dispositive motion is due. If he does not identify the Doe defendants by that time, 18 they will be dismissed. 19 CONCLUSION 20 1. The Clerk shall VACATE the Order of Dismissal and related judgment (ECF 8 and 21 9) and REOPEN the case. 22 2. Defendant T. Allen is DISMISSED. 23 3. The Court ORDERS that service on the following defendants shall proceed under 24 the California Department of Corrections and Rehabilitation’s (CDCR) e-service program for civil 25 rights cases from prisoners in the CDCR’s custody: 26 a. A. Halstead, SVSP Senior Registered Nurse II 27 b. G.R. Padilla, SVSP Chief Executive Officer 1 d. L.V.N. Serrato 2 e. L.V.N. Su 3 f. Correctional Officer Covarrubias 4 In accordance with the program, the Clerk is directed to serve on the CDCR via email the 5 following documents: the operative complaint (ECF 11), this Order of Service, a CDCR Report of 6 E-Service Waiver form, and a summons. The Clerk also shall serve a copy of this order on the 7 plaintiff. 8 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 9 provide the court a completed CDCR Report of E-Service Waiver advising the court which 10 defendant(s) listed in this order will be waiving service of process without the need for service by 11 the United States Marshal Service (USMS) and which defendant(s) decline to waive service or 12 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 13 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 14 a waiver of service of process for the defendant(s) who are waiving service. 15 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 16 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 17 USM-285 Form. The Clerk shall provide to the USMS the completed USM-285 forms and copies 18 of this order, the summons and the operative complaint for service upon each defendant who has 19 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 20 Service Waiver. 21 2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 22 requires defendants to cooperate in saving unnecessary costs of service of the summons and 23 complaint. If service is waived, this action will proceed as if defendants had been served on the 24 date that the waiver is filed, except that pursuant to Rule 12(a)(1)(A)(ii), defendants will not be 25 required to serve and file an answer before sixty (60) days from the date on which the CDCR 26 provides a copy of the CDCR Report of E-Service Waiver to the California Attorney General’s 27 Office. (This allows a longer time to respond than would be required if formal service of 1 the USMS, then defendants shall serve and file an answer within twenty-one (21) days after being 2 served with the summons and complaint. 3 6. Defendants shall answer the complaint in accordance with the Federal Rules of Civil 4 Procedure. The following briefing schedule shall govern dispositive motions in this action: 5 a. No later than sixty (60) days from the date their answer is due, defendants 6 shall file a motion for summary judgment or other dispositive motion. The motion must be 7 supported by adequate factual documentation, must conform in all respects to Federal Rule of 8 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from 9 the events at issue. A motion for summary judgment also must be accompanied by a Rand1 notice 10 so that plaintiff will have fair, timely, and adequate notice of what is required of him in order to 11 oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out 12 in Rand must be served concurrently with motion for summary judgment). A motion to dismiss 13 for failure to exhaust available administrative remedies must be accompanied by a similar notice. 14 However, the Court notes that under the law of the circuit, in the rare event that a failure to 15 exhaust is clear on the face of the complaint, defendants may move for dismissal under Rule 16 12(b)(6), as opposed to the previous practice of moving under an unenumerated Rule 12(b) 17 motion. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc) (overruling Wyatt v. 18 Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that failure to exhaust available 19 administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”), 20 should be raised by a defendant as an unenumerated Rule 12(b) motion). Otherwise, if a failure to 21 exhaust is not clear on the face of the complaint, defendants must produce evidence proving 22 failure to exhaust in a motion for summary judgment under Rule 56. Id. If undisputed evidence 23 viewed in the light most favorable to plaintiff shows a failure to exhaust, defendants are entitled to 24 summary judgment under Rule 56. Id. But if material facts are disputed, summary judgment 25 should be denied and the district judge, rather than a jury, should determine the facts in a 26 preliminary proceeding. Id. at 1168. 27 1 If defendants are of the opinion that this case cannot be resolved by summary judgment, 2 they shall so inform the Court prior to the date the summary judgment motion is due. All papers 3 filed with the Court shall be promptly served on plaintiff. 4 b. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 5 and served on defendants no later than twenty-eight (28) days after the date on which 6 defendants’ motion is filed. 7 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of 8 the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 9 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 10 be granted when there is no genuine issue of material fact—that is, if there is no real dispute about 11 any fact that would affect the result of your case, the party who asked for summary judgment is 12 entitled to judgment as a matter of law, which will end your case. When a party you are suing 13 makes a motion for summary judgment that is supported properly by declarations (or other sworn 14 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 15 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 16 as provided in Rule 56(e), that contradict the facts shown in the defendant’s declarations and 17 documents and show that there is a genuine issue of material fact for trial. If you do not submit 18 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 19 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 20 F.3d at 962-63. 21 Plaintiff also is advised that—in the rare event that defendants argue that the failure to 22 exhaust is clear on the face of the complaint—a motion to dismiss for failure to exhaust available 23 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 24 prejudice. To avoid dismissal, you have the right to present any evidence to show that you did 25 exhaust your available administrative remedies before coming to federal court. Such evidence 26 may include: (1) declarations, which are statements signed under penalty of perjury by you or 27 others who have personal knowledge of relevant matters; (2) authenticated documents— 1 authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements 2 in your complaint insofar as they were made under penalty of perjury and they show that you have 3 personal knowledge of the matters state therein. As mentioned above, in considering a motion to 4 dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment 5 motion under Rule 56, the district judge may hold a preliminary proceeding and decide disputed 6 issues of fact with regard to this portion of the case. Albino, 747 F.3d at 1168. 7 (The notices above do not excuse defendants’ obligation to serve similar notices again 8 concurrently with motions to dismiss for failure to exhaust available administrative remedies and 9 motions for summary judgment. Woods, 684 F.3d at 935.) 10 d. Defendants shall file a reply brief no later than fourteen (14) days after the 11 date plaintiff’s opposition is filed. 12 e. The motion shall be deemed submitted as of the date the reply brief is due. 13 No hearing will be held on the motion unless the Court so orders at a later date. 14 7. Discovery may be taken in this action in accordance with the Federal Rules of Civil 15 Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to defendants to depose 16 plaintiff and any other necessary witnesses confined in prison. 17 8. All communications by plaintiff with the Court must be served on defendants or 18 their counsel, once counsel has been designated, by mailing a true copy of the document to them. 19 9. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 20 informed of any change of address and must comply with the Court’s orders in a timely fashion. 21 Pursuant to Northern District Local Rule 3-11, a party proceeding pro se whose address changes 22 while an action is pending must promptly file a notice of change of address specifying the new 23 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 24 directed to the pro se party by the Court has been returned to the Court as not deliverable, and (2) 25 the Court fails to receive within sixty days of this return a written communication from the pro se 26 party indicating a current address. See L.R. 3-11(b). 27 // 1 10. Upon a showing of good cause, requests for a reasonable extension of time will be 2 || granted provided they are filed on or before the deadline they seek to extend. 3 4 5 IT IS SO ORDERED. 6 Dated: November 6, 2023 7 <= i ON 9 United States District Judge 10 11 12 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28