Arellano v. Jones ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAUL ARELLANO, Case No.: 3:20-cv-0228-LAB-RBM CDCR #AH-1995, 12 ORDER DIRECTING USMS TO Plaintiff, 13 EFFECT SERVICE OF FIRST JONES; SIHOTANG; DR. MARTIN; AMENDED COMPLAINT 14 SANTILLAN; CDCR, 15 Defendants. 16 17 18 19 I. Procedural History 20 On February 6, 2020, Raul Arellano (“Plaintiff”), currently incarcerated at the 21 Richard J. Donovan Correctional Facility (“RJD”) located in San Diego, California, and 22 proceeding pro se, filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. 23 See Doc. No. 1. In addition, Plaintiff submitted a Motion to Proceed In Forma Pauperis 24 (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. 25 The Court GRANTED Plaintiff’s Motion to Proceed IFP on March 30, 2020. See 26 Doc. No. 5 at 9. In addition, the Court DISMISSED all claims against Defendants Sihotang 27 and CDCR on the grounds that Plaintiff failed to state a claim against them and sought 28 money damages against immune defendants pursuant to 28 U.S.C. § 1915(e)(2) AND 28 1 U.S.C. § 1915A(b). Id. at 10. The Court did find that Plaintiff had adequately stated an 2 Eighth Amendment claim against Defendants Jones, Martin, and Santillan. Id. at 9. 3 Plaintiff was given the option to either file an amended pleading correcting the deficiencies 4 of pleading identified in the Court’s Order or proceed as to the claims against Defendants 5 Jones, Martin, and Santillan only. Id. at 10. On May 1, 2020, Plaintiff filed his First 6 Amended Complaint (“FAC”). See Doc. No. 6. 7 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 8 A. Standard of Review 9 As the Court previously informed Plaintiff, because Plaintiff is a prisoner and is 10 proceeding IFP, his FAC also requires a pre-answer screening pursuant to 28 U.S.C. 11 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a 12 prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a 13 claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 14 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. 15 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The 16 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not 17 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) 18 (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 19 “The standard for determining whether a plaintiff has failed to state a claim upon 20 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 21 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 22 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 23 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 24 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 25 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 26 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 27 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 28 1 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 2 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 3 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 4 [is] ... a context-specific task that requires the reviewing court to draw on its judicial 5 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 6 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 7 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 8 B. Plaintiff’s Allegations 9 In January of 2016, Plaintiff began a medication called Depakote to treat his seizures, 10 as well as a “neuropathy medication Gabapentin.” (FAC at 4.) Plaintiff claims this 11 combination of medications was effective in treating his seizures and “neuropathy pain.” 12 (Id.) Plaintiff claims that “all his bad symptoms” began to appear when Doctor Guldseth1 13 reduced Plaintiff’s Gabapentin. (See id.) 14 On June 5, 2019, Plaintiff went “into emergency status” and was seen by Dr. Martin. 15 (Id.) Plaintiff informed Dr. Martin that he “had a seizure and fell.” (Id.) He further 16 informed Dr. Martin that he suffers from back and neck pain that “feels like snake bites” 17 and his “pain is a level 10.” (Id.) 18 Plaintiff also alleges that he informed Dr. Martin that his “pain is interfering with 19 breathing, causing shortness of breath, night sweats depriving [him] of sleep,” weakness in 20 his legs, and a “burning sensation.” (Id.) However, Plaintiff claims Dr. Martin called him 21 a “liar.” (Id.) Plaintiff alleges Dr. Martin “forcefully twisted” his neck “left and right” 22 even after he had informed Dr. Martin that he could not move his neck due to pain. (Id.) 23 Plaintiff told Dr. Martin to “stop because it was painful.” (Id.) Plaintiff claims Dr. Martin 24 called him a “Mexican prisoner and a drug addict just like all the other ones.” (Id.) He 25 further purportedly told Plaintiff that “all [Plaintiff] wants is drugs.” (Id.) 26 27 28 1 Dr. Guldseth is not a named Defendant. 1 Plaintiff later viewed his medical report on August 15, 2019 and noted that Dr. 2 Martin “omitted everything [Plaintiff] told him that [he] was suffering from.” (Id. at 5.) 3 Plaintiff claims Dr. Martin “lied so he [could] justify why he sent [Plaintiff] back home 4 without treatment.” (Id.) When Plaintiff later saw his personal physician, he was told by 5 this doctor that “he saw nothing that would cause concern” based on “Dr. Martin’s report.” 6 (Id.) Plaintiff claims this caused his personal physician to not give him “proper 7 medication,” as well as “inject[ing] the word malingering in his medical file.” (Id.) 8 Plaintiff claims that Dr. Martin’s failure to treat him caused him to suffer seizures 9 which led to “falls and extreme pain.” (Id.) 10 On June 11, 2019 Plaintiff went to the “medical office” and told Nurse Jones that he 11 had recently been taken off his “seizure and neuropathy pain medication.” (Id. at 7.) 12 Plaintiff further informed Jones that he recently had a seizure which led to “increase[ed] 13 pain” at Plaintiff’s “previous injury spots.” (Id.) He also indicated that the seizures caused 14 him to “fall backward” which led to more “nerve damage.” (Id.) Plaintiff claims he told 15 Jones that he had pain “severe enough similar to snake bites, need poking” and he was 16 suffering from chest pain. (Id.) 17 Plaintiff told Jones he needed to “go to TTA so [he] can see a doctor and get proper 18 treatment for [his] symptoms.” (Id.) However, Plaintiff’s request was denied, and he was 19 “sent back” to his cell. (Id.) “Hours after their denial,” Plaintiff had a seizure. (Id.) 20 On June 26, 2019, Plaintiff told Jones that he woke up to a seizure “in intense pain” 21 in his chest. (Id.) Plaintiff claims he described his chest pain to Jones as feeling like 22 “broken rib stabbing” the area of his chest near his heart. (Id.) He also told Jones that Dr. 23 Guldseth had previously told him to go to the “TTA to get a prolactin blood drawn right 24 after a seizure.” (Id.) However, Plaintiff alleges Jones “interfere[ed] and denied [him] 25 access to medical attention.” (Id.) Plaintiff claims Jones told him to go back to his cell or 26 “otherwise get a disciplinary action.” (Id.) 27 / / / 28 1 On July 14, 2019, Plaintiff “went to window of pill line.” (Id. at 9.) Plaintiff told 2 LVN Santillan that his chest pain was “so severe that it was interfering with [his] 3 breathing.” (Id.) Plaintiff further informed Santillan that he needed “immediate medical 4 care” and requested to see a doctor to get “proper course of treatment for symptoms.” (Id.) 5 However, Santillan purportedly told Plaintiff that he was “bullshitting” and to “go away 6 from his window.” (Id.) Plaintiff went to Officer Plaza2 to seek medical attention but 7 Santillan told Officer Plaza that Plaintiff was “bullshitting” and did not require medical 8 attention. (Id.) Officer Plaza told Plaintiff to go back to his cell because “medical would 9 not help [him]” and he could do nothing other than to send Plaintiff “back to [his] cell or 10 get a disciplinary action.” (Id.) 11 On June 11, 2019, Plaintiff “went to medical office where inmates pick up 12 medication daily.” (Id. at 11.) Plaintiff told LVN Sihotang that he had “recently got taken 13 off [his] seizure medication” and as a result, he was suffering “severe pain” and 14 “uncontrol[lable] seizures.” (Id.) Plaintiff also informed Sihotang that he had recently had 15 a “partial seizure” in his cell that caused him to fall. (Id.) Plaintiff “woke up on [the] floor 16 with lots of pain” in areas where he had “suffered previous injuries due to seizures.” (Id.) 17 Plaintiff “explained that the pain is severe.” (Id.) 18 Plaintiff “told Sihotang that he needs to call an ambulance so [Plaintiff] can see a 19 doctor right away.” (Id.) However, “Sihotang, together with Jones, den[ied] [his] request” 20 and sent Plaintiff back to his cell. (Id.) They told Plaintiff if they called an ambulance it 21 “was going to delay their home on time.” (Id.) 22 After Plaintiff returned to his cell, he suffered a seizure, fell, and hurt his “back and 23 elbow.” (Id.) Plaintiff claims he suffered “severe pain” in his back following the fall. (Id.) 24 Plaintiff seeks injunctive relief, punitive damages, and compensatory damages for 25 “pain and emotional distress.” (Id. at 16.) 26 27 28 2 Officer Plaza is not a named Defendant. 1 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 2 A. Standard of Review 3 As the Court previously informed Plaintiff, Plaintiff is a prisoner and is proceeding 4 IFP, his FAC also requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and 5 § 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP 6 complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks 7 damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 8 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 9 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of 10 [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the 11 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) 12 (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 13 “The standard for determining whether a plaintiff has failed to state a claim upon 14 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 15 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 16 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 17 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 18 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 19 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 20 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 21 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 22 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 23 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 24 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 25 [is] ... a context-specific task that requires the reviewing court to draw on its judicial 26 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 27 / / / 28 1 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 2 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 3 Here, the Court finds that Plaintiff’s FAC contains plausible Eighth Amendment 4 inadequate medical care claims sufficient to survive the “low threshold” set to withstand 5 the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm, 6 680 F.3d at 1123; Iqbal, 556 U.S. at 678; Farmer v. Brennan, 511 U.S. 825, 837 (1994) 7 (failure to protect claims under the Eighth Amendment require a showing that “the official 8 [knew] of and disregard[ed] an excessive risk to inmate health or safety.”); Jett v. Penner, 9 439 F.3d 1091, 1096 (9th Cir. 2006) (to maintain an Eighth Amendment claim based on 10 medical care in prison, a prisoner must show deliberate indifference to his serious medical 11 needs) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (quotation marks omitted). 12 The CDCR is typically not liable for any injury to a prisoner unless a statutory 13 exception applies. See California Government Code § 844.6. An exception to this rule 14 may apply to this matter to the extent that Plaintiff is seeking to hold the CDCR liable 15 based on claims that CDCR employees allegedly knew of Plaintiff need for immediate 16 medical care and failed to take action to summon such care. See California Government 17 Code § 845.6. 18 Therefore, the Court shall order U.S. Marshal service on Plaintiff’s behalf. See 19 Lopez, 203 F.3d at 1126-27; 28 U.S.C. § 1915(d) (“The officers of the court shall issue 20 and serve all process, and perform all duties in [IFP] cases.”); FED.R.CIV.P. 4(c)(3) 21 (providing that “service be effected by a United States marshal, deputy United States 22 marshal, or other officer specially appointed by the court . . . when the plaintiff is authorized 23 to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.”). 24 III. Conclusion and Order 25 Good cause appearing, IT IS HEREBY ORDERED: 26 1. The Clerk shall issue a summons upon all Defendants, and forward it to 27 Plaintiff along with a blank U.S. Marshal Form 285 for the Defendant. In addition, the 28 1 Clerk shall provide Plaintiff with a copy of the March 30, 2020 Order, and a copy of his 2 FAC and summons for purposes of serving the Defendant. Upon receipt of this “IFP 3 Package,” Plaintiff is directed to complete the USM Form 285s as completely and 4 accurately as possible, and to return them to the United States Marshal according to the 5 instructions provided by the Clerk in the letter accompanying his IFP package. Thereafter, 6 the U.S. Marshal shall serve a copy of the FAC and summons upon both the Defendant and 7 the United States as directed by Plaintiff on the USM Form 285s. All costs of service shall 8 be advanced by the United States. 9 2. Plaintiff shall serve upon Defendants or, if appearance has been entered by 10 counsel, upon Defendants’ counsel, a copy of every further pleading or other document 11 submitted for consideration of the Court. Plaintiff shall include with the original paper to 12 be filed with the Clerk of the Court a certificate stating the manner in which a true and 13 correct copy of any document was served on Defendants, or counsel for Defendants, and 14 the date of service. Any paper received by the Court which has not been filed with the 15 Clerk or which fails to include a Certificate of Service will be disregarded. 16 3. The U.S. Marshal is ordered to serve a copy of the FAC and summons upon 17 Defendants as directed by Plaintiff on the USM Form 285 provided to him. All costs of 18 that service will be advanced by the United States. See 28 U.S.C. § 1915(d); FED. R. CIV. 19 P. 4(c)(3); and 20 4. The Plaintiff is ordered, after service has been effected by the U.S. Marshal, to 21 serve upon Defendants or, if appearance has been entered by counsel, upon Defendants’ 22 counsel, a copy of every further pleading, motion, or other document submitted for the 23 Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must include with every 24 original document he seeks to file with the Clerk of the Court, a certificate stating the 25 manner in which a true and correct copy of that document has been was served on 26 Defendants or Defendants’ counsel, and the date of that service. See S.D. CAL. CIVLR 5.2. 27 / / / 28 1 Any document received by the Court which has not been properly filed with the 2 ||Clerk, or which fails to include a Certificate of Service upon the Defendant, may be 3 || disregarded. 4 IT IS SO ORDERED. 5 6 || Dated: July 6, 2020 / mid 4 . ‘by, i Vy 7 Hon. Larry Alan Burns g Chief United States District Judge 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28