Keavney v. O'Brian ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL RICHARD KEAVNEY, Case No. 20cv1443-MMA-MSB Booking #17104761, 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT v. 14 15 JOHN/JANE DOE, 16 Defendant. 17 18 19 20 21 Michael Richard Keavney (“Plaintiff”), currently detained at San Diego County 22 Sheriff’s Department’s Vista Detention Facility, is proceeding pro se and in forma 23 pauperis (“IFP”) in this civil rights action pursuant to 42 U.S.C. Section 1983. See Doc. 24 No. 8 at 11. 25 The Court previously dismissed Plaintiff’s initial Complaint, Doc. No. 1, for 26 failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 27 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) and granted leave to amend. See Doc. No. 8 at 28 11-12. Plaintiff timely filed a First Amended Complaint. See Doc. No. 9 (“FAC”). 1 I. Screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 1915A(b) 2 A. Standard of Review 3 Because Plaintiff is a prisoner and is proceeding IFP, his First Amended Complaint 4 requires a pre-answer screening pursuant to Sections 1915(e)(2) and 1915A(b). Under 5 these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any 6 portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from 7 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 8 (en banc) (discussing 28 U.S.C. Section 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 9 1004 (9th Cir. 2010) (discussing 28 U.S.C. Section 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 Section 1915(e)(2)(B)(ii) is the same as the Federal 15 Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 16 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 17 (9th Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the 18 familiar standard applied in the context of failure to state a claim under Federal Rule of 19 Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual 20 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 21 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 22 1121. 23 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 24 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 25 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 26 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 27 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 28 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 1 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 2 (9th Cir. 2009). 3 B. Plaintiff’s Factual Allegations 4 Plaintiff’s First Amended Complaint focuses on the alleged failure to provide 5 adequate medical care after Plaintiff sustained a shoulder and ankle injury while in 6 custody at the San Diego County Jail in May 2018. See FAC at 3. The only named 7 Defendant1 is “John Doe/Jane Doe,” a medical doctor named as a party in his or her 8 official capacity, “who makes final decisions for the medical department at the San Diego 9 County Jail Downtown.” See id. at 2. 10 In the months following his injury, Plaintiff was seen by a variety of doctors, both 11 within the jail and at outside facilities. See id. at 3. An outside specialist and a doctor in 12 the jail ordered twice weekly physical therapy for Plaintiff. Id. Despite those orders, 13 Plaintiff alleges that he was taken to just one physical therapy appointment. See id. 14 Plaintiff alleges that the denial of physical therapy was the result of a “conscious 15 decision” by the Doe Defendant, who is allegedly “[t]he doctor in charge at the San 16 Diego County Jail . . . [and] who[] makes all final decisions regarding all medical 17 treatment within the San Diego County Jail, including outside the jail medical 18 appointments . . . .” Id. “From September [to] present the Defendant, having full 19 capability to follow Doctors[’] orders and provide the ordered medical care, still 20 continues to ignore Plaintiff[’]s pleas throughout the exhausted administrative grievance 21 process . . . showing obvious deliberate indifference to the medical needs of Plaintiff.” 22 Id. at 4-5. Because Plaintiff did not receive physical therapy, he explains that he 23 experiences “constant incre[a]sed pain and extre[me] mobility and strength 24 25 1 Plaintiff’s initial Complaint asserted claims against a number of additional named Defendants. 26 Because Plaintiff was given an opportunity to amend and chose to omit claims against those Defendants, the Court DIRECTS the Clerk of the Court to terminate as parties to this case all Defendants except a 27 single Doe Defendant. See Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an amended pleading may be 28 1 impairment . . . .” Id. at 4. 2 Plaintiff seeks injunctive relief directing an examination by a specialist doctor not in 3 the San Diego County Jail and that Defendant follow the plan of treatment ordered by 4 Plaintiff’s doctor, as well as $1.5 million each in compensatory and punitive damages. See 5 id. at 7. 6 C. Analysis 7 To state a claim under 42 U.S.C. Section 1983, a plaintiff must allege two essential 8 elements: (1) that a right secured by the Constitution or laws of the United States was 9 violated, and (2) that the alleged violation was committed by a person acting under the 10 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 11 1035-36 (9th Cir. 2015). 12 Claims of inadequate medical care by pretrial detainees like Plaintiff2 must be 13 analyzed under the due process clause of the Fourteenth Amendment. See Castro v. 14 Cnty. of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016) (“Inmates who sue prison 15 officials for injuries suffered while in custody may do so under the Eighth Amendment’s 16 Cruel and Unusual Punishments Clause, or if not yet convicted, under the Fourteenth 17 Amendment’s Due Process Clause.”) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)). 18 Like claims under the Eighth Amendment, Plaintiff must allege “that the . . . officials 19 acted with ‘deliberate indifference.’” Id. at 1068. “[T]he elements of a pretrial 20 detainee’s medical care claim against an individual defendant under the due process 21 clause of the Fourteenth Amendment are: (i) the defendant made an intentional decision 22 with respect to the conditions under which plaintiff was confined; (ii) those conditions 23 put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not 24 take reasonable available measures to abate that risk, even though a reasonable official in 25 the circumstances would have appreciated the high degree of risk involved—making the 26 27 2 Although Plaintiff does not allege whether he was a pretrial detainee at the time of the incidents in 28 1 consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, 2 the defendant caused the plaintiff’s injuries.” Gordon v. Cnty. of Orange, 888 F.3d 1118, 3 1124-25 (9th Cir. 2018). “With respect to the third element, the defendant’s conduct 4 must be objectively unreasonable, a test that will necessarily ‘turn[] on the facts and 5 circumstances of each particular case.’” Id. at 1125 (quoting Kinglsey v. Hendrickson, 6 576 U.S. 389, 397 (2015)). 7 As mentioned, Plaintiff alleges that the Defendant John/Jane Doe was deliberately 8 indifferent to Plaintiff’s medical needs because they prevented Plaintiff from receiving 9 the physical therapy that his other doctors ordered. See FAC at 4. At times, Plaintiff 10 alleges that Defendant Doe participated in the deprivation of medical care by “ignor[ing] 11 Plaintiff[’]s pleas throughout the exhausted administrative grievance process . . ..” See 12 id. at 4-5. Elsewhere, Plaintiff alleges that Defendant Doe “made a conscious decision in 13 January of 2019, to not follow doctors[’] orders . . . ,” but the First Amended Complaint 14 does not describe that how or on what basis that decision was made. See id. at 4. 15 To the extent Plaintiff’s claims are based on the denial of administrative 16 grievances, they must be dismissed. Prison officials are generally not liable for due 17 process violations simply for denying or failing to process inmate grievances. See, e.g., 18 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Furthermore, to the extent 19 Plaintiff seeks damages against Defendant in his or her official capacity, those claims 20 must be dismissed as well. “[A] suit against a state official in his or her official capacity 21 is not a suit against the official but rather is a suit against the official’s office.” Will v. 22 Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Accordingly, Defendant is entitled 23 to immunity from suit for monetary damages in his or her official capacity under the 24 Eleventh Amendment. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 53-54 (1996). 25 Liberally construing Plaintiff’s First Amended Complaint as also pursuing a 26 medical care claim against Defendant in his or her individual capacity, Plaintiff alleges 27 that Defendant Doe intentionally denied or delayed physical therapy ordered by 28 Plaintiff’s other physicians for non-medical reasons, and that Plaintiff’s condition 1 worsened as a result. See FAC at 4-5. The Court finds that these allegations are 2 sufficient to state a claim of inadequate medical care that surpasses the “low threshold” 3 set for sua sponte screening required by Sections 1915(e)(2) and 1915A(b). See Wilhelm, 4 680 F.3d at 1123; see also, e.g., Wakefield v. Thompson, 177 F.3d 1160, 1165 (9th Cir. 5 1999) (“Following Estelle [v. Gamble, 429 U.S. 97, 104-05 (1976)], we have held that a 6 prison official acts with deliberate indifference when he ignores the instructions of the 7 prisoner’s treating physician.”). 8 Despite this finding, without the name of Defendant John/Jane Doe the Court 9 cannot order the U.S. Marshals’ Service to effectuate service of Plaintiff’s First Amended 10 Complaint. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3); see also Hunter v. 11 Sandoval, No. 2:17-cv-09257-CJC (SHK), 2018 WL 6074562, at *4 (C.D. Cal. Aug. 31, 12 2018) (“[W]ithout any named defendants, the Court cannot order service of the 13 Complaint.” (citations omitted)). Because “the use of ‘John Doe’ or ‘Jane Doe’ to 14 identify a defendant is not favored,” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 15 1980), other courts have concluded that when a plaintiff proceeding pro se and IFP states 16 a claim against an unnamed defendant sufficient to survive screening, the appropriate 17 course of action is to dismiss the complaint but to grant the plaintiff leave to amend 18 substituting the true name of that defendant. See, e.g., Linsey v. Dzurenda, No. 2:18-cv- 19 00902-JAD-VCF, 2019 WL 7194560, at *2 (D. Nev. Dec. 26, 2019); Hunter, 2018 WL 20 6074562, at *3-5 (“[I]f Plaintiff files a FAC that only names Doe defendants . . . it will be 21 subject to dismissal.” (citation omitted)). 22 To learn the name of the Doe Defendant, Plaintiff must: (1) use whatever 23 procedures are available at the jail to review his medical records and, by doing so, 24 identify the name of the Doe Defendant; and (2) if after reviewing those records Plaintiff 25 is still unable to determine Defendant’s name, then Plaintiff must file a properly 26 supported motion for the Court to issue a subpoena duces tecum pursuant to Federal Rule 27 of Civil Procedure 45. See Linsey, 2019 WL 7194560 at *1-2; Hunter, 2018 WL 28 6074562, at *3-4 (explaining that a motion pursuant to Rule 45 “should clearly identify 1 the documents that would have the information that Plaintiff is seeking and explain why 2 the documents and information would be available from that company, entity, or person, 3 which is not one named in the lawsuit . . ..”). 4 II. Conclusion and Order 5 For the reasons set forth above, the Court: 6 (1) DISMISSES this action in its entirety and GRANTS Plaintiff sixty (60) 7 days leave to amend. This leave to amend is limited solely to identifying the Doe 8 Defendant, restating the claims asserted in the First Amended Complaint against him or 9 her, and, to the extent Plaintiff wishes to pursue compensatory and/or punitive damages, 10 alleging those claims against Defendant in his or her individual capacity. Plaintiff may 11 not include new or additional claims and/or Defendants in any Second Amended 12 Complaint without further leave of the Court. 13 As stated previously, to learn the Doe Defendant’s name, Plaintiff must: (1) use 14 whatever procedures are available to review his medical records to search for the identity 15 of the Doe Defendant; and (2) if after reviewing his records Plaintiff is still unable to 16 identify Defendant, then file a properly supported motion for the Court to issue a 17 subpoena duces tecum pursuant to Federal Rule of Civil Procedure 45. If Plaintiff files a 18 motion for the Court to issue a subpoena pursuant to Rule 45, he should carefully review 19 the requirements of the Rule, and submit a motion that “clearly identif[ies] the documents 20 that would have the information that Plaintiff is seeking and explain why the documents 21 and information would be available from that company, entity, or person, which is not 22 one named in the lawsuit,” for example Defendant John/Jane Doe. See Hunter, 2018 WL 23 6074562, at *4. 24 Plaintiff should act diligently in reviewing his medical records and, if that fails, 25 filing a motion pursuant to Rule 45, as the Court will grant extensions of the deadline to 26 file a Second Amended Complaint only if Plaintiff shows that he has actively pursued 27 Defendant’s identity. 28 1 Any Second Amended Complaint must be complete by itself without reference to 2 || Plaintiff's original Complaint or his First Amended Complaint. Defendants not named 3 any claim not re-alleged in his Second Amended Complaint will be considered 4 ||} waived. See CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 5 || F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.’’); 6 || Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed 7 || with leave to amend which are not re-alleged in an amended pleading may be “considered 8 || waived if not repled.”). 9 If Plaintiff fails to file a Second Amended Complaint within the time provided, the 10 || Court will enter a final Order dismissing this civil action based on Plaintiff’s failure to 11 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 12 ||427 F.3d 1164, 1169 (9th Cir. 2005) (“Ifa plaintiff does not take advantage of the 13 || opportunity to fix his complaint, a district court may convert the dismissal of the 14 || complaint into dismissal of the entire action.”). 15 (2) DIRECTS the Clerk of the Court to terminate as parties to this action all 16 || Defendants except a single John/Jane Doe. 17 (3) DIRECTS the Clerk of the Court to send to Plaintiff a copy of his First 18 || Amended Complaint (Doc. No. 9), a blank copy of the Court’s approved instructions and 19 || form “Complaint under the Civil Rights Act 42 U.S.C. § 1983,” and a blank copy of 20 Form AO 88B “Subpoena to Produce Documents, Information, or Objects,” for 21 || Plaintiff's use in preparing a Second Amended Complaint and/or submitting a Rule 45 22 ||motion. If Plaintiff files a Rule 45 motion, he must attach to that motion a completed 23 || version of Form AO 88B. 24 IT IS SO ORDERED. 25 || DATE: May 5, 2021 Lf f Du _ □□ □□ 5 26 HON. MICHAEL M. ANELLO 7 United States District Judge 28