DeVault v. Maricopa, County of et al

Filing 4

ORDER Defendants Maricopa County, Arpaio, Nocera, Arcadia Radiology, Gan, Gregorio, Rogers, Mitchell-Lopen, Dr. V, Doctor #190 (Hanson), Gaskins, Daniels, Perez, and Johnson must answer the Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. Any answer or response must state the specific Defendant by name on whose behalf it is filed. The Court may strike any answer, response, or other mo tion or paper that does not identify the specific Defendant by name on whose behalf it is filed. This matter is referred to Magistrate Judge Mark E. Aspey pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). Signed by Judge Robert C Broomfield on 7/22/2011. (KMG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Marissa DeVault, Plaintiff, 10 11 vs. 12 Maricopa County, et al., Defendants. 13 ) ) ) ) ) ) ) ) ) ) No. CV 11-1423-PHX-RCB (MEA) ORDER 14 15 I. Procedural History 16 On March 10, 2011, Plaintiff Marissa DeVault, who is represented by attorney Keith 17 M. Knowlton, filed a Complaint in the Superior Court of Maricopa County, Arizona, against 18 Defendants Maricopa County; Sheriff Joe Arpaio; Zandra S. Nocera, MD; Arcadia 19 Radiology; Dr. Gan; Dr. G. Gregorio; D. Rogers RN; Theresa Mitchell-Lopen, MA; Dr. V; 20 Doctor #190; Dr. Gaskins; S. Daniels RN; S. Perez RN; M. Johnson, PA-C SC145, and a 21 variety of fictitiously named defendants. 22 On July 18, 2011, Defendants Maricopa County, Arpaio, Gan, Gregorio, Mitchell- 23 Lopen, Rogers, Dr. V, Hanson (Doctor #190), Gaskins, Daniels, Perez, and Johnson, who are 24 represented by Maricopa County Deputy Attorney Sherle R. Flaggman, filed a Notice of 25 Removal (Doc. 1).1 26 27 TERMPSREF 28 1 According to the Supplemental Civil Cover Sheet, Defendants Nocera and Arcadia Radiology have been served, but their attorney is unknown; Defendants Dr. V, Rogers, and 1 II. Removal 2 A state court defendant may remove to federal court any civil action brought in the 3 state court over which the federal district courts would have original jurisdiction. 28 U.S.C. 4 § 1441(a). In her March 10, 2011 Complaint, Plaintiff raises, among other things, a claim 5 under 42 U.S.C. § 1983. This Court’s jurisdiction extends to such claims. 28 U.S.C. 6 §§ 1331, 1343(a). Removal, therefore, is appropriate. 7 III. Statutory Screening of Prisoner Complaints 8 The Court is required to screen complaints brought by prisoners seeking relief against 9 a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. 10 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised 11 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 12 be granted, or that seek monetary relief from a defendant who is immune from such relief. 13 28 U.S.C. § 1915A(b)(1), (2). 14 IV. 15 16 Complaint Plaintiff received an ankle surgery prior to being detained in the Maricopa County Jail. Her Complaint concerns care she received while detained. 17 In Count One, Plaintiff alleges that the “Medical Defendants”2 violated her Fourth, 18 Eighth, and Fourteenth Amendment rights because they were deliberately indifferent to 19 providing her with proper medical care and treatment for her injury. Plaintiff contends that 20 Defendant Maricopa County violated Plaintiff’s Fourth, Eighth, and Fourteenth Amendment 21 rights because it has a “history of and/or maintain[s] a custom, policy, practice, and/or 22 procedure of deliberate indifferent to medical care and treatment for inmates.” Plaintiff 23 asserts that Defendant Maricopa County knowingly and intentionally allows unconstitutional 24 conditions to exist regarding inmates’ medical needs and is “aware of and disregarded 25 26 27 28 TERMPSREF Daniels are represented by attorney Flaggman, but have not been served. 2 In her Complaint, Plaintiff identifies the “Medical Defendants” as Defendants Gan, Gregorio, Rogers, Mitchell-Lopen, Dr. V, Doctor #190 (Hanson), Gaskins, Daniels, Perez, Johnson, and Nocera. -2- 1 systemic and gross deficiencies in medical staffing and procedures.” Plaintiff also claims 2 that Defendants Maricopa County and Arpaio “failed to properly train and supervise the 3 Medical Defendants and detention Officers” in how to provide proper medical care and 4 treatment and in dealing with sick and injured inmates. 5 In Count Two, Plaintiff alleges that Defendant Maricopa County and the Medical 6 Defendants were negligent or grossly negligent in failing to provide Plaintiff with appropriate 7 medical care and treatment. Plaintiff also contends that Defendant Maricopa County was 8 negligent or grossly negligent in failing to: provide Plaintiff with prompt emergency medical 9 care and treatment; put in place policies, procedures, and staff to ensure that Plaintiff could 10 receive a “prompt, accurate and professional evaluation of her medical condition and quick, 11 prompt and professional medical care and treatment”; and have competent and fully trained 12 medical personnel on staff. Plaintiff also asserts that Defendant Maricopa County failed to 13 properly train and supervise the Medical Defendants and that Defendants Maricopa County 14 and Arpaio failed to train and supervise the detention officers. Plaintiff also claims that 15 Defendants Maricopa County and Arpaio are liable under respondeat superior for their 16 employees’ negligent acts. 17 18 The Court will require Defendants Maricopa County, Arpaio, Nocera, Arcadia 19 Radiology, Gan, Gregorio, Rogers, Mitchell-Lopen, Dr. V, Doctor #190 (Hanson), Gaskins, 20 Daniels, Perez, and Johnson to answer the Complaint. Although the Court will not require 21 the fictitiously named Defendants to answer the Complaint at this time, the Court will not 22 dismiss the claims against them. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 23 1999) (where identity of defendants is unknown prior to filing of complaint, plaintiff should 24 be given an opportunity through discovery to identify the unknown defendants, unless it is 25 clear that discovery would not uncover the identities or that the complaint would be 26 dismissed on other grounds). If Plaintiff later discovers the identity of the fictitiously named 27 Defendants, Plaintiff can amend or seek to amend her Complaint in compliance with Rule 28 TERMPSREF In her Request for Relief, Plaintiff seeks monetary damages and her attorney’s fees. 15 of the Federal Rules of Civil Procedure. -3- 1 2 IT IS ORDERED: (1) Defendants Maricopa County, Arpaio, Nocera, Arcadia Radiology, Gan, 3 Gregorio, Rogers, Mitchell-Lopen, Dr. V, Doctor #190 (Hanson), Gaskins, Daniels, Perez, 4 and Johnson must answer the Complaint or otherwise respond by appropriate motion within 5 the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil 6 Procedure. 7 (2) Any answer or response must state the specific Defendant by name on whose 8 behalf it is filed. The Court may strike any answer, response, or other motion or paper that 9 does not identify the specific Defendant by name on whose behalf it is filed. 10 (3) This matter is referred to Magistrate Judge Mark E. Aspey pursuant to Rules 11 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized 12 under 28 U.S.C. § 636(b)(1). 13 DATED this 22nd day of July, 2011. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF -4-

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