Jones v. Alvarez et al

Filing 12

ORDER (Service Packet) granting 2 MOTION for Leave to Proceed in forma. Defendants Friedman, Belcourt, Kramer, Davis, Saretsky, Brooks, Hernandez, Alvarez, Norma Doe, Risk Management Supervisor Doe, and Does LS865, CS959, CS533, RT125, CS995, CS1 57, CH606 (or 686), CH741, HS556, HS217, CS565, HS212, 138776, 182045, 182409, and 185336 are dismissed without prejudice. The Clerk of Court must send Plaintiff a service packet including the Complaint (Doc. 1 ), this Order, and both summons and r equest for waiver forms for Defendants Barker, Gaskins, and Johnson. Plaintiff's motion for appointment of counsel is denied. (Doc. 5 .) Plaintiff's Supplement, Declarations, Notice, and Affidavits are denied to the extent that any reli ef is sought therein. (Doc. 6 - 11 .) This matter is referred to Magistrate Judge Lawrence O. Anderson 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). (See document for full details). Signed by Judge David G Campbell on 7/1/13. (LAD)

Download PDF
1 2 SC WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Craig Murray Jones, 9 Plaintiff, 10 vs. 11 Jeff Alvarez, et al., 12 Defendants. 13 ) ) ) ) ) ) ) ) ) ) No. CV 13-0099-PHX-DGC (LOA) ORDER 14 Plaintiff Craig Murray Jones, who is confined in Maricopa County’s Fourth Avenue 15 Jail in Phoenix, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 16 and an Application to Proceed In Forma Pauperis. Plaintiff later filed a motion for 17 appointment of counsel, a supplement, declarations, a notice, and affidavits. (Doc. 5-11.) 18 The Court will order Defendants Barker, Gaskins, and Johnson to answer Count I of the 19 Complaint and will dismiss the remaining Defendants without prejudice. The Court will 20 deny Plaintiff’s motion and other filings to the extent that any relief is sought therein. 21 I. Application to Proceed In Forma Pauperis and Filing Fee 22 23 § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). 24 The Court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). The statutory 25 fee will be collected monthly in payments of 20% of the previous month’s income each time 26 the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a 27 separate Order requiring the appropriate government agency to collect and forward the fees 28 TERMPSREF Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. according to the statutory formula. 1 II. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief against 3 a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised 5 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 6 be granted, or that seek monetary relief from a defendant who is immune from such relief. 7 28 U.S.C. § 1915A(b)(1), (2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not 10 demand detailed factual allegations, “it demands more than an unadorned, the-defendant- 11 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 12 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 13 statements, do not suffice.” Id. 14 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 17 that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 19 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual 21 allegations may be consistent with a constitutional claim, a court must assess whether there 22 are other “more likely explanations” for a defendant’s conduct. Id. at 1951. 23 24 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th 25 Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards 26 than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 27 94 (2007) (per curiam)). 28 TERMPSREF But as the United States Court of Appeals for the Ninth Circuit has instructed, courts / / / -2- 1 III. Complaint 2 Plaintiff alleges one count for denial of constitutionally-adequate medical care. 3 Plaintiff sues 29 Defendants, who work, or worked, for Maricopa County’s Correctional 4 Health Service (CHS). They include the following named Defendants: Medical Director Jeff 5 Alvarez, M.D.; External Hearing Officer Lourdes Hernandez; Risk Management Division 6 Supervisor John Doe; Health Care Provider (HCPs) Drs. Richard D. Friedman (CH102), 7 Monica Gaskins (CH109), Craig Belcourt, Ian Kramer, and Unknown First Name Davis; 8 Physician’s Assistants (PAs), Matt Barker (CH038), Barry Johnson (CH106), and Erica 9 Saretsky (CS121)1; and Licensed Practical Nurse (LPN) Pam Brooks (CH718).2 Plaintiff 10 also sues 12 staff-members whom he labels “triage nurses” and whom he identifies as John 11 Doe with their badge or employee numbers: LS865, CS995, CS959, CS157, CS533, RT125, 12 CH606 or 686, CH741, HS556, HS217, CS565, and HS212. Plaintiff sues another four John 13 Does who responded to certain Health Needs Requests (HNRs) by the control numbers on 14 those HNRs, as follows, Doe 138776, Doe 182045, Doe 182409, and Doe 185336.3 Finally, 15 Plaintiff sues an Evening Pill Pass Nurse named Norma, whom he identifies as John Doe 16 (hereafter Norma Doe). Plaintiff seeks injunctive, compensatory, and punitive relief. 17 Plaintiff alleges the following facts in his Complaint: Plaintiff is a 60-year old 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF 1 Information available on-line from the Arizona Medical Board reflect that Friedman, Gaskins, and Belcourt are all medical doctors. There was no listing for Ian Kramer and it is unclear without a first name whether Davis is or was a physician or a PA.. Defendants Johnson and Saretsky are PAs, rather than doctors. See glsuiteweb/clients/azbom/Public/Profile.aspx? entID=1618086&licID=262750&licType=1 (last visited June 13, 2013). 2 Plaintiff does not consistently refer to particular Defendants either by their names and/or identification numbers. Further, he refers to numerous Defendants as John Doe without separately differentiating between the particular Doe Defendants. 3 It is unclear whether one or more persons responded to these HNRs, and thus, whether four persons or fewer than four persons are being sued. -3- 1 seriously mentally ill (SMI) inmate.4 On October 5, 2010, prior to incarceration, Plaintiff 2 was involved in a car accident that resulted in cervical, thoracic, and lumbar sprain or strain; 3 disc displacement; myalgia/hypertonicity; neuralgia; neuritis; radiculitis; and lumbar 4 intervertebral disc disorder. Prior to confinement, Plaintiff received physical therapy and 5 narcotic pain relievers, which significantly or substantially alleviated continuing pain as a 6 result of his injuries. Since June 23, 2011, Plaintiff has been incarcerated in Maricopa 7 County jails and the balance of his allegations primarily concern his repeated requests for 8 treatment of pain stemming from the physical injuries he suffered in the October 5, 2010 9 accident. 10 Upon arrival at the Fourth Avenue Jail, Plaintiff informed “intake” that he was SMI 11 and that he had missed several doses of psychiatric medications because of his detention and, 12 shortly thereafter, apparently notified staff of his back injuries.5 On June 26, 2011, Plaintiff 13 submitted an HNR complaining of severe pain as a consequence of the 2010 accident and 14 stating that available medical records would document his injuries. “Defendant John Doe 15 # 16 Plaintiff hot-packs or rubbing cream, nor did he request Plaintiff’s medical records. (Doc. 17 1 at 3C.) In a June 30, 2011 HNR, Plaintiff reported that he was in serious pain and asked 18 to see a doctor. “John Doe # ” responded to this HNR, but did not address Plaintiff’s pain. 19 (Id.) On July 7, 2011, Plaintiff, in tears, pleaded with Defendant Doe CS995 to help him 20 with his pain; Doe CS995 provided him a blanket. ” evaluated Plaintiff but did not “address” Plaintiff’s pain by, for example, giving 21 In a July 19, 2011 HNR, Plaintiff again reported that he was suffering from serious 22 pain and asked why he had not been seen by a doctor for his back. “John Doe # ” passed 23 the HNR on to someone else without attempting to alleviate Plaintiff’s pain to the extent that 24 Doe could. (Id.) On July 30, 2011, Plaintiff’s pain caused him to vomit. Plaintiff submitted 25 26 27 28 TERMPSREF 4 Elsewhere, Plaintiff indicates that he suffers from Post-Traumatic Stress Disorder (PTSD). 5 Plaintiff does not appear to seek relief with respect to treatment of his mental illness(es). -4- 1 another HNR again asking to see a doctor concerning his pain. “John Doe # 2 ” again passed the HNR on to someone else. (Id.) 3 In an August 8, 2011 HNR, Plaintiff pleaded for pain relief and to see a doctor until 4 CHS obtained his medical records. According to Plaintiff, “John Doe # ” could have done 5 “something,” but did not. (Id.) Plaintiff sent for his medical records himself because his pain 6 was becoming unendurable and the continued lack of treatment was reversing progress he 7 had made prior to incarceration. Plaintiff received HNR responses stating that he was 8 scheduled to see a doctor, but Plaintiff claims that he did not. 9 On October 3, 2011, Plaintiff brought his medical records to an appointment at which 10 he was seen by HCP “John Doe # ”. (Id.) “John Doe # ” referred Plaintiff to an outside 11 orthopedic specialist, but he did not alleviate Plaintiff’s pain and “ignored” Plaintiff’s 12 medical records. (Id. at 3C-3D.) Plaintiff contends that “John Doe # 13 prescribed over-the-counter pain relievers, but did not. (Id.) Plaintiff does not allege that he 14 requested pain medication or that he was unable to purchase over-the-counter pain relievers 15 from the commissary. ” could have 16 On October 12, 2011, Plaintiff was evaluated by an outside orthopedic specialist who 17 ordered Ultram, a non-narcotic analgesic,6 and Flexeril, a muscle relaxant,7 Baclofen8, and 18 epidural injections. In an October 15, 2011 HNR, Plaintiff reported that he had seen an 19 20 21 22 23 24 25 26 6 According to information available on-line from the National Institutes of Health, Ultram©, or Tramadol, is used “to relieve moderate to moderately severe pain.” See (Last visited June 3, 2013). 7 Flexeril© is a muscle relaxant, which should not be taken for more than three weeks without conferring with the treating physician, and requires special precautions for persons suffering from various conditions, taking other medications, and/or more than 65 years of age. See (Last visited June 3, 2013). 8 27 28 TERMPSREF “Baclofen acts on the spinal cord nerves and decreases the number and severity of muscle spasms caused by multiple sclerosis or spinal cord diseases. It also relieves pain and improves muscle movement.” See a682530.html (last visited June 3, 2013). -5- 1 outside the orthopedic specialist, who had issued written recommendations for treatment, and 2 asked if he was going to be seen for his serious pain. Staff member RT251 responded 3 “Follow up appt. with ortho scheduled.” (Id. at 3D.) 4 In a November 1, 2011 HNR, Plaintiff reported that Ultram and Baclofen were not 5 effective in alleviating his pain and that Flexeril had never been dispensed.9 6 November 5, 2011 response, Defendant Barker informed Plaintiff that Ultram and Baclofen 7 were being discontinued based on Plaintiff’s report that they were ineffective. (Id.) Plaintiff 8 apparently then complained about the failure to prescribe alternative medications, such as 9 those he had taken prior to his incarceration, which had been effective. (Id.) “John Doe #__” 10 responded by telling Plaintiff that he was “saying the same thing.” (Id.) Plaintiff contends 11 that Doe ignored the record and failed to investigate the situation enough to make an 12 informed decision. In a 13 In a December 1, 2011 HNR, Plaintiff sought a referral for epidural injections 14 recommended by the outside specialist on October 10, 2011. Defendant Doe CH606 (or 686) 15 responded that Plaintiff was scheduled to be seen. Plaintiff contends that Doe CH606 should 16 have been aware from Plaintiff’s medical records of the severe pain he was suffering, that 17 prior effective pain treatment had ended upon his incarceration, and that there had been 18 significant delay since the injections had been recommended. On December 26, 2011, after 19 still not having been seen since his December 1 HNR, Plaintiff submitted an HNR in which 20 he reported that his pain was “unbearable” and asked to be informed of the status of the 21 scheduled appointment. (Id.) Defendant Doe CS157 responded that “Your M.R.I. was done 22 Dec. 20, 2011, Please be patient” and that “Your appointment is comming [sic].” (Id.) 23 Because he had not received an MRI in December 2011, Plaintiff feared that CS157 was 24 referring to another inmate’s MRI or was referring to Plaintiff’s pre-incarceration MRI, 25 which would not show any degenerative changes since incarceration. On December 29, 26 2011, Doe RT984 clarified that CS157 had referred to Plaintiff’s pre-incarceration MRI. In 27 28 9 TERMPSREF Plaintiff does not allege when or for how long he took the medications. -6- 1 a December 30, 2011 HNR, Plaintiff reported that he was considering legal action due to the 2 delay in treatment for his serious pain. Defendant Doe CS157 responded that Plaintiff had 3 an appointment scheduled. 4 On January 13, 2012, “John Doe # ” prescribed Plaintiff Soma, a non-narcotic 5 muscle relaxant, for 30 days. (Id. at 3E.) Plaintiff was told to submit an HNR requesting 6 “renewal” before the end of the 30 days. Soma significantly reduced Plaintiff’s pain level 7 and Plaintiff did not submit HNRs concerning his pain while he received Soma. 8 In a February 8, 2012 HNR, Plaintiff requested a renewal of the Soma prescription, 9 which was due to expire on February 14, 2012. Although Plaintiff had not complained of 10 pain while taking Soma, Defendant Barker denied the renewal without providing an 11 alternative medication for pain. 12 By February 12, 2012, Plaintiff was again suffering serious pain after Soma was 13 discontinued.10 Plaintiff asked that it be renewed or to see a doctor. Defendant Doe CH741 14 responded that “Soma renewal was denied by provider on 2/9/2012.” (Id.) On February 14, 15 2012, Plaintiff “made it clear to CHS” that the discontinued “meds” had been working well 16 and that he had been able to assist his attorney, but was again suffering pain without the 17 medications. Defendant Brooks responded that Plaintiff had to put in a renewal HNR for 18 medications. In a February 16, 2012 HNR, Plaintiff again requested a renewal of Soma, but 19 Brooks responded that renewal had been denied. 20 On March 1, 2012, “John Doe” or “John Doe #1” evaluated Plaintiff and told him of 21 Soma’s addictive properties and declined to prescribe Soma, despite Plaintiff’s effective pre- 22 incarceration treatment with Hydrocodone and Oxycontin without adverse effects. (Id. at 23 ¶¶ 13, 60.) “Later,” apparently the same day or March 2, Plaintiff received three epidural 24 injections for pain and the treatment specialist, apparently Dr. Page, also recommended 25 26 27 28 TERMPSREF 10 Plaintiff does not explain the discrepancy between his allegation that his Soma prescription was due to expire on February 14, 2012, and his allegation that he was in severe pain due to the discontinuation of Soma prior to February 14, 2012. -7- 1 Soma.11 2 In an April 1, 2012 HNR, Plaintiff reported that he was again in pain and that it had 3 been several weeks since he had seen the specialist. PA Saretsky (CS121) responded 4 “referral in Progress for [follow-up].” (Id.) In an April 9, 2012 HNR, Plaintiff asked when 5 he would see the treatment specialist and stated that he was in serious pain. “John Doe #__” 6 responded that an appointment was scheduled. (Id.) 7 Beginning April 17, 2012, Plaintiff received Soma for two weeks. According to 8 Plaintiff, although an unidentified person again ordered Soma on May 1, 2012, Plaintiff was 9 actually given Flexeril.12 In a May 5, 2012 HNR, Plaintiff asked why he was receiving 10 Flexeril rather than Soma, when Soma had effectively relieved his pain and Flexeril did not. 11 On June 11, 2012, a treatment specialist ordered or recommended Soma for Plaintiff. 12 In a June 18, 2012 HNR, Plaintiff asked to see a doctor because he had not seen a doctor in 13 months and he wanted to know about any changes in treatment. PA Johnson responded that 14 a follow-up had been requested. In a June 27, 2012 HNR, Plaintiff stated that he could not 15 go to an appointment with the pain specialist because he had a court hearing the following 16 day and did not want to be “drugged up for court.”13 (Id. at 3F.) “CHS” responded that the 17 appointment was scheduled. (Id.) 18 In a July 15, 2012 HNR, Plaintiff asked when the June 11 prescription for Soma 19 would be filled. HS556 responded that “we are awaiting additional documentation from pain 20 21 22 23 24 25 26 27 28 TERMPSREF 11 “An epidural steroid injection (ESI) is the delivery of powerful anti-inflammatory medicine directly into the space outside of the sac of fluid around your spinal cord. This area is called the epidural space.” Http:// (last visited June 12, 2013). “Epidural steroid injections provide short-term pain relief for at least half of the people who receive them. Symptoms may remain better for weeks to months, but rarely up to a year.” Id. 12 Plaintiff states that Soma was ordered for four days, but Soma was not dispensed to him. 13 Plaintiff indicates that the residual effects of anesthesia used in administering injections lasted for some time after a treatment. -8- 1 management office.”14 (Id.) In a July 31, 2012 HNR, Plaintiff stated that he was in pain and 2 asked why he was not receiving Soma. PA Saretsky (CS121) responded that “Your [sic] 3 were seen by provider on 7/23/12 and this issue was discussed with you,” and that “if you 4 are in pain, I suggest not refusing your options provided.” (Id.) Plaintiff contends the 5 response was designed to make it appear that he was in pain because he refused proffered 6 alternatives, but that he had declined the alternatives because they had been “historically 7 ineffective” in treating his pain. (Id.) Plaintiff fails to describe when or whom he saw on 8 July 23, 2012, or what occurred. 9 In an August 6, 2012 HNR, Plaintiff warned that he was preparing to file a grievance 10 regarding CHS’s failure to treat his back injury and pain. HS556 responded that Plaintiff was 11 scheduled to be seen. On August 15, 2012, Plaintiff filed grievance 12-08667. In an 12 August 31, 2012 HNR, Plaintiff requested use of a wheelchair for an upcoming court hearing 13 because he was unable to walk to court due to pain caused by walking in shackles. “CHS” 14 responded that a visit would be scheduled. 15 In a September 1, 2012 HNR, Plaintiff asked to see a provider regarding pain from a 16 knee injury that was getting worse. HS217 responded that Plaintiff was scheduled to be seen. 17 In a September 5, 2012 HNR, Plaintiff complained that he had been woken up to go to a pain 18 management appointment, but he had never been taken. 19 In a September 7, 2012 HNR, Plaintiff “pleaded” to see a provider about his pain. (Id. 20 at 3G.) Defendant Barker responded “s/c sched.” (Id.) In a September 11, 2012 HNR, 21 Plaintiff asked to see a provider for pain. In response, he was told that an appointment was 22 scheduled. In a September 14, 2012 HNR, Plaintiff again complained of pain and asked why 23 CHS refused to provide prescribed pain medication; Plaintiff fails to identify the medication 24 to which he refers or when and by whom it was prescribed. HS217 responded that Plaintiff 25 26 27 28 TERMPSREF 14 In a July 17, 2012 HNR, Plaintiff complained about having to sign a medical release to receive a copy of the prescription. In response, CH640 stated that Plaintiff needed to sign a release and send it to medical records to get the copies. On July 19, 2012, Plaintiff filed another HNR complaining about the response to his July 17 HNR. HS212 responded to this HNR by stating that Plaintiff was scheduled to be seen. -9- 1 was scheduled to be seen. 2 On September 18, 2012, Dr. Gaskins saw Plaintiff and ordered Soma to be provided 3 two weeks on and two weeks off. On the basis that it would be, Plaintiff agreed to dismiss 4 his pending grievance as resolved. The next day, a Memorandum from the Risk Management 5 Division to External Hearing Officer Hernandez stated that Plaintiff was being prescribed 6 Soma, that he had agreed to a two week on, two week off Soma regimen, and that his 7 grievance was dismissed. However, Plaintiff did not receive Soma ordered by Dr. Gaskins. 8 In a September 25, 2012 HNR, Plaintiff accused CHS of showing deliberate indifference by 9 falsely purporting to have resolved his grievance and by failing to provide him a wheelchair. 10 Defendant Brooks responded that “medication was discontinued, wheelchair is ordered.” (Id.) 11 In a September 28, 2012 HNR, Plaintiff asked to see a provider. RT580 responded that 12 on September 25, 2012 Soma was discontinued because it was not available as it was a “non13 formulary” medication. (Id.) Plaintiff submitted another HNR the same day asking to see his 14 medical records; this HNR was returned. 15 In an October 5, 2012 HNR, Plaintiff reported that his pain was out of control and that 16 he could not sleep. HS212 responded that he was scheduled to be seen. On October11, 2012, 17 Dr. Gaskins ordered “a thermal undershirt” for Plaintiff and agreed to speak to the medical 18 director about an exception being made so that Plaintiff could receive Soma.15 Dr. Gaskins 19 also suggested alternative medications, including Vicodin, to Plaintiff, but Plaintiff apparently 20 rejected those alternatives at that time. 21 In an October 15, 2012 HNR, Plaintiff complained about not receiving the thermal 22 undershirt. HS217 responded that while Medical had ordered the undershirt, the sheriff’s 23 department had to provide it and it no longer gave them out. In an October 17, 2012 HNR, 24 Plaintiff reported that he was in excruciating pain and noted that Dr. Gaskins had agreed to 25 ask the medical director to approve Soma. Plaintiff asked to see Dr. Gaskins because his pain 26 27 28 TERMPSREF 15 According to Plaintiff, he did not receive the undershirt until he filed a grievance. Even then, the undershirt was later taken from him and never returned. Plaintiff does not allege when this occurred. - 10 - 1 was affecting his underlying Post-Traumatic Stress Disorder (PTSD). In an October 18, 2012 2 HNR, Plaintiff reported that Dr. Gaskins had ordered him a thermal undershirt, but when he 3 asked Nurse Norma Doe about it, Doe responded that “Dr. Gaskins is crazy” and “doing 4 things she shouldn’t be doing.” (Id. at 3H.) Plaintiff stated that he intended to include the 5 incident in a lawsuit if he did not receive the undershirt. Plaintiff received an unsigned 6 response stating that the sheriff’s department would not provide the thermal until November. 7 In an October 22, 2012 HNR, Plaintiff asked why he was not receiving responses to his 8 requests, asked about the grievance agreement that had not been honored, and reported that 9 he was suffering from agonizing pain. Brooks responded that medical did not provide thermal 10 undershirts and did not otherwise address his complaints. 11 In an October 25, 2012 HNR, Plaintiff again reported unbearable pain. HS212 12 responded that he had discussed the issue with Dr. Gaskins; HS212 stated that Plaintiff had 13 “declined and refused all other meds available and offered for your pain. Should you 14 reconsider and want one of the meds offered, state the name you want ....” (Id.) In an 15 October 26, 2012 HNR, Plaintiff asked to see Dr. Gaskins again because he believed that he 16 was being forced to choose from ineffective medications to address his pain. HS212 17 essentially repeated his previous response. 18 In an October 30, 2012 HNR, Plaintiff stated that he would consider taking Vicodin, 19 which Dr. Gaskins had suggested on October 11, 2012, if it was prescribed at an effective 20 dose – Plaintiff explained that he had previously been prescribed one pill every 12 hours, but 21 the manufacturer suggested two pills every 6 to 8 hours.16 This HNR was forwarded to PA 22 Johnson. PA Johnson replied that he saw “nothing for extra strength Vicodin for the duration. 23 You have stated in the past that Vicodin does not work.” (Id.) PA Johnson also suggested 24 that Plaintiff buy over-the-counter pain relievers from the commissary. Plaintiff contends that 25 PA Johnson’s reply was non-responsive and deliberately misstated his request. 26 On November 1, 2012, Plaintiff was given a “Patient Registration Form” to complete, 27 28 TERMPSREF 16 Plaintiff does not allege the dosage he previously received or the dosage recommended, if any, by Dr. Gaskins. - 11 - 1 which was to be sent to a new pain specialist. Plaintiff completed the form and submitted it 2 with a November 5, 2012 HNR, in which he sought information regarding whether the 3 epidural injections he had received were part of a contaminated lot of such injections that 4 resulted in a number of meningitis deaths around the country. Defendant Brooks told Plaintiff 5 that he had to ask Dr. Page, the pain specialist who had administered his epidural injections. 6 In a November 12, 2012 HNR, Plaintiff asked when he would be seen for his serious 7 pain. HS556 responded that Plaintiff was scheduled to be seen. Plaintiff saw the new pain 8 specialist on November 15, 2012. In a November 16, 2012 HNR, Plaintiff asked to see an 9 HCP about his pain and to discuss his visit with the new pain specialist. Plaintiff described 10 the consultation with the new specialist as useless and an effort to keep him in pain. 11 Apparently the new specialist had recommended nerve blocks, but had not recommended 12 Soma, unlike Dr. Page. HS556 responded that Plaintiff was already scheduled to be seen. 13 V. Failure to State a Claim 14 To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the 15 conduct about which he complains was committed by a person acting under the color of state 16 law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v. 17 Outlander, 879 F.2d 583, 587 (9th Cir. 1989). Negligence is not sufficient to state a claim 18 under § 1983. Daniels v. Williams, 474 U.S. 327, 330-31 (1986). In addition, a plaintiff must 19 allege that he suffered a specific injury as a result of the conduct of a particular defendant and 20 he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo 21 v. Goode, 423 U.S. 362, 371-72, 377 (1976). 22 Plaintiff alleges a single claim for denial of constitutionally-adequate medical care. 23 Not every claim by a prisoner relating to inadequate medical treatment states a violation of 24 the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a plaintiff must show 25 that the defendants acted with “deliberate indifference to serious medical needs.” Jett v. 26 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 27 (1976)). A plaintiff must show (1) a “serious medical need” by demonstrating that failure to 28 treat the condition could result in further significant injury or the unnecessary and wanton TERMPSREF - 12 - 1 infliction of pain and (2) the defendant’s response was deliberately indifferent. Jett, 439 F.3d 2 at 1096 (quotations omitted). 3 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 4 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know 5 of and disregard an excessive risk to inmate health; “the official must both be aware of facts 6 from which the inference could be drawn that a substantial risk of serious harm exists, and he 7 must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate 8 indifference in the medical context may be shown by a purposeful act or failure to respond 9 to a prisoner’s pain or possible medical need and harm caused by the indifference. Jett, 439 10 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally 11 denies, delays, or interferes with medical treatment or by the way prison doctors respond to 12 the prisoner’s medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096. 13 Deliberate indifference is a higher standard than negligence or lack of ordinary due 14 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 15 negligence will constitute deliberate indifference.” Clement v. California Dep’t of Corr., 220 16 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 17 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice” 18 do not support a claim under § 1983). “A difference of opinion does not amount to deliberate 19 indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 240, 242 (9th 20 Cir. 1989). A mere delay in medical care, without more, is insufficient to state a claim against 21 prison officials for deliberate indifference. See Shapley v. Nevada Bd. of State Prison 22 Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be substantial. The 23 action must rise to a level of “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. 24 at 105. 25 A. Fictitiously-Identified Defendants 26 Plaintiff sues various fictitiously-identified Defendants. Most such Defendants are 27 identified by their position, such as Risk Management Division Supervisor John Doe, or as 28 John or Jane Doe followed by their badge or control number. Plaintiff’s allegations against TERMPSREF - 13 - 1 these Doe Defendants are discussed further below. However, Plaintiff also attributes many 2 allegations to “Defendant John Doe # ”, “John Doe # 3 # ”, HCP “John Doe # ”, “John Don ”, or “John Doe #”. The Court is unable to discern whether such allegations refer to a 4 single individual or to multiple individuals. Plaintiff also largely fails to allege the positions 5 held by these Doe Defendants. 6 Rule 10(a) of the Federal Rules of Civil Procedure requires the plaintiff to include the 7 names of the parties in the action. As a practical matter, it is impossible in most instances for 8 the United States Marshal or his designee to serve a summons and complaint or amended 9 complaint upon an anonymous defendant. 10 The Ninth Circuit has held that where identity is unknown prior to the filing of a 11 complaint, the plaintiff should be given an opportunity through discovery to identify the 12 unknown defendants, unless it is clear that discovery would not uncover the identities, or that 13 the complaint would be dismissed on other grounds. Wakefield v. Thompson, 177 F.3d 1160, 14 1163 (9th Cir. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). Where 15 the names of individual defendants are unknown at the time a complaint is filed, a plaintiff 16 may refer to the individual unknown defendants as Defendant John (or Jane) Doe 1, John Doe 17 2, and so on, and allege facts to support how each particular Doe defendant violated the 18 plaintiff’s constitutional rights, including when, where, and how. A plaintiff may thereafter 19 use the discovery process to obtain the names of fictitiously-named defendants whom he 20 believes violated his constitutional rights and seek leave to amend to name those defendants. 21 Because the Court is unable to discern whether Plaintiff’s Doe Defendant allegations refer to 22 a single individual or to multiple individuals, and Plaintiff therefore has not alleged facts to 23 support how each particular Doe Defendant violated his rights, Defendants John Doe # ”, 24 “John Doe # ”, HCP “John Doe # ”, “John Don # ”, and “John Doe #” will be dismissed 25 without prejudice. 26 B. Other Defendants 27 Plaintiff also sues numerous other Defendants. To state a claim against a defendant, 28 “[a] plaintiff must allege facts, not simply conclusions, that show that an individual was TERMPSREF - 14 - 1 personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 2 1193, 1194 (9th Cir. 1998). For an individual to be liable in his official capacity, a plaintiff 3 must allege that the official acted as a result of a policy, practice, or custom. See Cortez v. 4 County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001). Further, there is no respondeat 5 superior liability under § 1983, so a defendant’s position as the supervisor of someone who 6 allegedly violated a plaintiff’s constitutional rights does not make him liable. Monell v. Dep’t 7 of Soc. Servs., 436 U.S. 658, 691 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 8 A supervisor in his individual capacity, “is only liable for constitutional violations of his 9 subordinates if the supervisor participated in or directed the violations, or knew of the 10 violations and failed to act to prevent them.” Taylor, 880 F.2d at 1045. In addition, where 11 a defendant’s only involvement in allegedly unconstitutional conduct is the denial of 12 administrative grievances, the failure to intervene on a prisoner’s behalf to remedy the alleged 13 unconstitutional behavior does not amount to active unconstitutional behavior for purposes 14 of § 1983. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); accord Proctor v. 15 Applegate, 661 F.Supp.2d 743, 765 (W.D. Mich. 2009); Stocker v. Warden, No. 1:07-CV16 00589, 2009 WL 981323, at *10 (E.D. Cal. Apr. 13, 2009); Mintun v. Blades, No. CV-0617 139, 2008 WL 711636, at *7 (D. Idaho Mar. 14, 2008); see also Gregory v. City of Louisville, 18 444 F.3d 725, 751 (6th Cir. 2006) (a plaintiff must allege that a supervisor defendant did more 19 than play a passive role in an alleged violation or mere tacit approval thereof; a plaintiff must 20 allege that the supervisor defendant somehow encouraged or condoned the actions of their 21 subordinates). 22 1. Friedman, Belcourt, Kramer, Davis, LS865, CS959, CS533, Doe 182045, & Doe 182409 23 24 Plaintiff sues named Defendants Friedman, Belcourt, Kramer, and Davis, as well as 25 Does LS865, CS959, CS533, 182045, and 182409. While these Defendants may be sued 26 under § 1983, Plaintiff fails to allege any facts against these Defendants. Plaintiff neither 27 alleges facts to support that any of these Defendants directly violated his constitutional rights, 28 nor facts to support that any of them promulgated, condoned, or endorsed the violation of TERMPSREF - 15 - 1 Plaintiff’s constitutional rights. Plaintiff’s assertions against “Defendants” generally are 2 vague and conclusory and insufficient to state a claim against these Defendants. Although 3 pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), 4 conclusory and vague allegations will not support a cause of action. Ivey v. Board of Regents 5 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of 6 a civil rights complaint may not supply essential elements of the claim that were not initially 7 pled. Id. Accordingly, these Defendants will be dismissed. 8 2. Alvarez, CHS Risk Manager Doe, Hernandez, Norma Doe, Saretsky, & Brooks 9 10 Plaintiff alleges that Alvarez together with Hernandez and CHS Risk Management 11 Supervisor Doe co-ordinated efforts to make it appear that grievances were resolved, when 12 they were not. Even if true, that absent more, does not state a constitutional claim against 13 Alvarez, Hernandez, or Doe. Plaintiff also alleges as to Supervisor Doe and Hernandez that 14 a September 19, 2012 Memorandum from the Risk Management Division to Hernandez stated 15 that Plaintiff was being prescribed Soma, that he had agreed to a two week on, two week off 16 Soma regimen, and that his grievance was dismissed. Plaintiff does not allege that Supervisor 17 Doe authored the Memorandum or how doing so violated Plaintiff’s constitutional rights. 18 Similarly, Plaintiff fails to allege facts to support that Hernandez in any way violated his 19 constitutional rights. Accordingly, Plaintiff also fails to state a claim against Supervisor Doe 20 and Hernandez and they will be dismissed. 21 Plaintiff alleges that when he asked Defendant Norma Doe about Dr. Gaskins’ ordering 22 him a thermal undershirt, she responded that “Dr. Gaskins is crazy” and “doing things she 23 shouldn’t be doing.” (Id. at 3H.) Norma Doe’s response, absent other facts, does not rise to 24 the level of a constitutional violation. Accordingly, Defendant Norma Doe will be dismissed. 25 Plaintiff alleges that PA Saretsky responded to his July 31, 2012 HNR asking why he 26 was not receiving Soma by stating that he had been seen on July 23, 2012, when alternatives 27 to Soma had been discussed. She suggested that Plaintiff consider one of the alternatives to 28 Soma. Saretsky did not thereby act with deliberate indifference to Plaintiff’s medical needs TERMPSREF - 16 - 1 and did not deny or refuse treatment. Therefore, Plaintiff fails to state a claim against her and 2 she will be dismissed. 3 Plaintiff alleges that Brooks responded to grievances and dispensed medications. 4 According to Plaintiff, Brooks responded to his February 14, 2012 HNR by telling him that 5 he had to submit an HNR for renewal of Soma, apparently unaware or overlooking that 6 Plaintiff had already done so and been denied renewal. Her response, absent more, was 7 merely negligent. Brooks responded to his February 16, 2012 HNR by stating that renewal 8 of Soma had been denied. She responded to Plaintiff’s September 25, 2012 HNR requesting 9 a wheelchair and Soma by stating that the Soma had been discontinued and a wheelchair had 10 been ordered. She responded to Plaintiff’s October 22, 2012 HNR complaining of agonizing 11 pain by stating that Medical did not have thermals to provide. She responded to his 12 November 5, 2012 HNR seeking information regarding a meningitis outbreak by suggesting 13 that Plaintiff contact the outside physician who administered the epidurals. Whatever the 14 short-comings of her responses, Brooks did respond to the above HNRs. Absent other 15 allegations, Brooks did not act with deliberate indifference to Plaintiff’s medical needs. 16 Accordingly, Plaintiff fails to state a claim against Brooks and she will be dismissed. 17 3. RT125, CS565, CS995, CS157, CH606 (686), CH741, HS556, HS217, CS565, HS212, Doe 138776, & Doe 185336 18 19 Plaintiff sues RT125, CS565, CS995, CS157, CH606 (686), CH741, HS556, HS217, 20 CS565, HS212, Doe 138776, and Doe 185336. He largely faults these Defendants for their 21 responses to various HNRs. Plaintiff in part faults these Defendants for responding that he 22 was scheduled to be seen by an HCP or outside provider, rather than or in addition to 23 attempting to alleviate his pain. Plaintiff fails to allege facts to support that any of these 24 Defendants were medically qualified or authorized to treat his serious pain issues. This is 25 particularly true where Plaintiff was repeatedly referred to outside pain specialists and/or 26 orthopedists for treatment. Plaintiff does not allege facts to support that the provision of ice27 packs, thermals, or other over-the-counter treatment would effectively alleviate his pain or 28 that any of these Defendants knew or should have known that the failure to provide such TERMPSREF - 17 - 1 treatment was likely to exacerbate Plaintiff’s condition. Nor do Plaintiff’s allegations support 2 that they failed to take some action to have his medical issues addressed, i.e., by scheduling 3 him to see medical staff. As such, Plaintiff fails to allege facts to support that they acted with 4 deliberate indifference. Accordingly, these Defendants will be dismissed. 5 C. Grievance Allegations 6 Plaintiff asserts a conspiracy to manipulate or distort the handling and resolution of his 7 jail grievances and non-compliance by Defendants with jail grievance procedures. “There is 8 no legitimate claim of entitlement to a [jail] grievance procedure.” Mann v. Adams, 855 F.2d 9 639, 640 (9th Cir. 1988). But if there is an established grievance procedure, the denial of 10 access to the grievance process may state a constitutional violation. Bradley v. Hall, 64 F.3d 11 1276, 1279 (9th Cir. 1995), abrogated on other grounds by Shaw v. Murphy, 532 U.S. 223 12 (2001); Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). The “government” 13 to which the First Amendment guarantees a right to petition for redress of grievances includes 14 jail authorities. Hall, 64 F.3d at 1279 (citing Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 15 1310, 1314 (9th Cir.1989)). It does not, however, entitle a prisoner to a particular resolution 16 of a grievance. 17 Plaintiff does not allege that he was denied access to an available jail grievance 18 procedure. Rather, he alleges that various Defendants failed to comply with jail grievance 19 procedures or to comply with resolutions of his grievances. That is not sufficient to state a 20 claim for violation of Plaintiff’s constitutional rights. Accordingly, such allegations will be 21 dismissed. 22 D. Conspiracy 23 Plaintiff also asserts a conspiracy to violate his constitutional rights. Conclusory 24 allegations of a conspiracy are insufficient to state a claim. See Franklin v. Fox, 312 F.3d 25 423, 441 (9th Cir. 2002) (explaining the requirements of a conspiracy claim under § 1983); 26 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.) (we need not “accept as true 27 allegations that are merely conclusory, deductions of fact, or unreasonable inferences”), 28 amended on other grounds, 275 F.3d 1187 (9th Cir. 2001); Woodrum v. Woodward County, TERMPSREF - 18 - 1 866 F.2d 1121, 1126 (9th Cir. 1989) (stating that conclusory allegations of conspiracy do not 2 support a § 1983 claim). 3 Plaintiff fails to allege facts to support a meeting of the minds, or agreement, between 4 or among individual Defendants to violate Plaintiff’s constitutional rights. Rather, Plaintiff 5 predicates his conspiracy allegation on his dissatisfaction with responses to his numerous 6 HNRs or the handling of his grievances. That is not sufficient to support that two or more 7 Defendants conspired to violate his constitutional rights. Accordingly, Plaintiff’s conspiracy 8 allegations will be dismissed. 9 10 D. Pattern, Policy, or Custom Plaintiff alleges that he repeatedly complained of pain to various staff, who failed to 11 effectively address his pain. On that basis, Plaintiff asserts that there is a pattern, policy, or 12 custom of delaying or denying treatment of pain. Plaintiff fails to allege facts sufficient to 13 show that a specific policy or practice was a “‘moving force’” behind any specific instance 14 of alleged deliberate indifference. See Lancaster v. City of Reno, 479 Fed. Appx. 774, 774-75 15 (9th Cir. 2012) (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985) (to state an official 16 capacity claim, plaintiff must show that a specific policy or custom was the “moving force” 17 behind unconstitutional conduct)).17 Plaintiff fails to allege facts to support the existence of 18 a policy, practice, or custom of denying effective pain treatment to inmates, as opposed to 19 careful control on the provision of medications highly susceptible to abuse in an incarceration 20 setting. Rather, Plaintiff makes only vague and conclusory assertions of an unconstitutional 21 policy, practice, or custom. While pro se pleadings are liberally construed, Haines, 404 U.S. 22 at 520-21, conclusory and vague allegations will not support a cause of action. Ivey, 673 F.2d 23 at 268. Further, a liberal interpretation of a civil rights complaint may not supply essential 24 25 26 27 28 TERMPSREF 17 In Graham, the Court stated that “Official-capacity suits . . . ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’” 473 U.S. at 165 (quoting Monell, 436 U.S. at 690 n.55). “As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Id. at 166. As discussed herein, Plaintiff has not named an entity, such as Maricopa County, as a defendant. - 19 - 1 elements of the claim that were not initially pled. Id. Because Plaintiff fails to allege facts 2 to support the existence of an unconstitutional policy, practice, or custom, Plaintiff fails to 3 state a claim on the basis of such alleged unconstitutional policy, practice, or custom or to 4 connect such alleged policy, practice, or custom to any Defendant. See Hydrick v. Hunter, 5 669 F.3d 937, 942 (9th Cir. 2012) (plaintiff failed to allege a specific policy implemented by 6 defendants or a specific event or events instigated by the defendants that led to purportedly 7 unconstitutional searches). These allegations will be dismissed. 8 V. Claim for Which an Answer Will be Required 9 Plaintiff also sues PA Barker, PA Johnson, and Dr. Gaskins. He alleges that Barker 10 discontinued Ultram and Baclofen and denied renewal of Soma on February 8, 2012 without 11 providing or addressing alternative medications or treatment for Plaintiff’s pain. Plaintiff 12 alleges that Dr. Gaskins, in effect, denied him medically appropriate treatment for his pain by 13 failing to prescribe effective medications. Plaintiff alleges that PA Johnson responded to 14 Plaintiff’s request for Vicodin as suggested by Dr. Gaskins by responding that he did not see 15 anything for extra-strength Vicodin and suggesting that Plaintiff purchase over-the-counter 16 pain relievers. Plaintiff sufficiently alleges that these Defendants acted with deliberate 17 indifference to his serious medical need, pain. Accordingly, these Defendants will be required 18 to respond to the Complaint. 19 VI. Motion, Supplement, Declarations, Notice, and Affidavits 20 Plaintiff has filed a motion for appointment of counsel. Plaintiff seeks the appointment 21 of counsel because his chronic pain makes it difficult to write, the complexity of the issues, 22 and inability to retain counsel. Counsel is only appointed in a civil rights action in 23 “exceptional circumstances.” Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 24 1103 (9th Cir. 2004); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Terrell v. 25 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances 26 requires an evaluation of both ‘the likelihood of success on the merits [and] the ability of the 27 [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues 28 involved.’” Wilborn, 789 F.2d at 1331; see Agyeman, 390 F.3d at 1103; Terrell, 935 F.2d at TERMPSREF - 20 - 1 1017. 2 Plaintiff has neither alleged nor shown exceptional circumstances warranting the 3 appointment of counsel. Further, the legal issues involved in this case do not present 4 exceptional circumstances and Plaintiff appears able to articulate his claims. Therefore, 5 Plaintiff’s motion for appointment of counsel will be denied. 6 Plaintiff has also filed a Supplement, Declarations, a Notice, and Affidavits. In the 7 Supplement, Plaintiff indicates that he wishes to assert state law claims. If Plaintiff wishes 8 to add claims to this action, he must comply with Rule 15 of the Federal Rules of Civil 9 Procedure. Rule 15(a) provides that a party may amend his pleading once as a matter course 10 within 21 days after serving it, or if the pleading is one to which a responsive pleading is 11 required, 21 days after service of a responsive pleading or 21 days after service of a motion 12 under Rule 12(b), (e), or (f), whichever is earlier. LRCiv. 15.1 requires that a party seeking 13 leave to amend submit a proposed amended pleading on the court-approved form. Plaintiff 14 has not complied with Rule 15(a) by filing an amended complaint on the court-approved form 15 complaint. The Court will disregard the Supplement to the extent that any relief is sought 16 therein. 17 Plaintiff has also filed Declarations, a Notice, and Affidavits apparently seeking an 18 order requiring one or more Defendants to show cause why injunctive relief should not be 19 granted. To seek injunctive relief or request any action by the Court must be in the form of 20 a motion that complies with the Rules of Practice of the United States District Court for the 21 District of Arizona (the Local Rules). To obtain injunctive relief, the moving party must show 22 “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 23 absence of preliminary relief, that the balance of equities tips in his favor, and that an 24 injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 25 (2008); Am. Trucking Assoc., Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 26 2009). In addition, the “serious questions” version of the sliding scale test for preliminary 27 injunctions remains viable after the Supreme Court’s decision in Winter. Alliance for the 28 Wild Rockies v. Cottrell, 632 F. 3d 1127, 1134-35 (9th Cir. 2011). Under that test, a TERMPSREF - 21 - 1 preliminary injunction is appropriate when a plaintiff demonstrates that “serious questions 2 going to the merits were raised and the balance of hardships tips sharply in [plaintiff’s] favor.” 3 Id. (citing Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc)). That 4 approach requires that the elements of the preliminary injunction test be balanced, so that a 5 stronger showing of one element may offset a weaker showing of another. “For example, a 6 stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood 7 of success on the merits.” Alliance for the Wild Rockies, 632 F.3d at 1135. A plaintiff must 8 also satisfy the other Winter factors, including the likelihood of irreparable harm. Id. The 9 moving party has the burden of proof on each element of the test. Environmental Council of 10 Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000). 11 In addition, a temporary restraining order without notice may be granted only if 12 “specific facts in an affidavit or verified complaint clearly show that immediate and 13 irreparable injury, loss, or damage will result to the movant before the adverse party can be 14 heard” and the movant certifies to the court in writing any efforts made to give notice and the 15 reasons that notice should not be required. Fed.R.Civ.P. 65(b). Further, “[t]he court may only 16 issue a preliminary injunction on notice to the adverse party.” Fed.R.Civ. P. 65(a)(1). 17 Plaintiff has not filed a motion seeking injunctive relief. Further, no Defendant has 18 been served with the Complaint or appeared in this action. Therefore, to the extent that 19 Plaintiff seeks any relief in his Declarations, Notice, or Affidavits, such relief will be denied. 20 VII. Warnings 21 A. 22 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Release 23 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay 24 the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result 25 in dismissal of this action. 26 B. Address Changes 27 Plaintiff must file and serve a notice of a change of address in accordance with Rule 28 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other TERMPSREF - 22 - 1 relief with a notice of change of address. Failure to comply may result in dismissal of this 2 action. 3 C. Copies 4 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a copy 5 of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate 6 stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit 7 an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply 8 may result in the filing being stricken without further notice to Plaintiff. 9 10 D. Possible Dismissal If Plaintiff fails to timely comply with every provision of this Order, including these 11 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 12 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to 13 comply with any order of the Court). 14 IT IS ORDERED: 15 (1) Plaintiff’s Application to Proceed In Forma Pauperis is granted. (Doc. 2.) 16 (2) As required by the accompanying Order to the appropriate government agency, 17 Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee. 18 (3) Defendants Friedman, Belcourt, Kramer, Davis, Saretsky, Brooks, Hernandez, 19 Alvarez, Norma Doe, Risk Management Supervisor Doe, and Does LS865, CS959, CS533, 20 RT125, CS995, CS157, CH606 (or 686), CH741, HS556, HS217, CS565, HS212, 138776, 21 182045, 182409, and 185336 are dismissed without prejudice. 22 (4) Defendants Barker, Gaskins, Johnson, must answer Count I. 23 (5) The Clerk of Court must send Plaintiff a service packet including the Complaint 24 (Doc. 1), this Order, and both summons and request for waiver forms for Defendants Barker, 25 Gaskins, and Johnson. 26 (6) Plaintiff must complete and return the service packet to the Clerk of Court 27 within 21 days of the date of filing of this Order. The United States Marshal will not provide 28 service of process if Plaintiff fails to comply with this Order. TERMPSREF - 23 - 1 (7) If Plaintiff does not either obtain a waiver of service of the summons or 2 complete service of the Summons and Complaint on a Defendant within 120 days of the filing 3 of the Complaint or within 60 days of the filing of this Order, whichever is later, the action 4 may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 5 16.2(b)(2)(B)(i). 6 (8) The United States Marshal must retain the Summons, a copy of the Complaint, 7 and a copy of this Order for future use. 8 (9) The United States Marshal must notify Defendants of the commencement of this 9 action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal 10 Rules of Civil Procedure. The notice to Defendants must include a copy of this Order. The 11 Marshal must immediately file signed waivers of service of the summons. If a waiver of 12 service of summons is returned as undeliverable or is not returned by a Defendant 13 within 30 days from the date the request for waiver was sent by the Marshal, the 14 Marshal must: 15 16 (a) personally serve copies of the Summons, Complaint, and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; and 17 (b) within 10 days after personal service is effected, file the return of service 18 for Defendant, along with evidence of the attempt to secure a waiver of service of the 19 summons and of the costs subsequently incurred in effecting service upon Defendant. 20 The costs of service must be enumerated on the return of service form (USM-285) and 21 must include the costs incurred by the Marshal for photocopying additional copies of 22 the Summons, Complaint, or this Order and for preparing new process receipt and 23 return forms (USM-285), if required. Costs of service will be taxed against the 24 personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil 25 Procedure, unless otherwise ordered by the Court. 26 (10) A Defendant who agrees to waive service of the Summons and Complaint 27 must return the signed waiver forms to the United States Marshal, not the Plaintiff. 28 TERMPSREF (11) Defendant must answer the Complaint or otherwise respond by appropriate - 24 - 1 motion within the time provided by the applicable provisions of Rule 12(a) of the Federal 2 Rules of Civil Procedure. 3 (12) Any answer or response must state the specific Defendant by name on whose 4 behalf it is filed. The Court may strike any answer, response, or other motion or paper that 5 does not identify the specific Defendant by name on whose behalf it is filed. 6 (13) Plaintiff’s motion for appointment of counsel is denied. (Doc. 5.) 7 (14) Plaintiff’s Supplement, Declarations, Notice, and Affidavits are denied to the 8 extent that any relief is sought therein. (Doc. 6-11.) 9 (15) This matter is referred to Magistrate Judge Lawrence O. Anderson pursuant to 10 Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 11 authorized under 28 U.S.C. § 636(b)(1). 12 DATED this 1st day of July, 2013. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF - 25 -

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?