Gause v. Maricopa County Correctional Health Services et al
Filing
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ORDER (Service Packet), Plaintiff's Motion for Indigent Legal Representation 7 is denied without prejudice; Plaintiff's Request for the Courts to Order Maricopa County Correctional Health to Release My Medical Records to Me 9 is denied as premature; Plaintiff's April 25, 2013 Document 10 is granted to the extent this Order addresses his First Amended Complaint and other filings; Defendants Dr. Friedman and Dr. Matt must answer the First Amended Complaint; the Clerk must send Plaintiff a service packet including the First Amended Complaint 8 , this Order, and both summons and request for waiver forms for Defendants Dr. Friedman and Dr. Matt; Plaintiff must complete and return the service packet to the Clerk within 21 days; this matter is referred to Magistrate Judge Mark E Aspey for all pretrial proceedings. Signed by Senior Judge Stephen M McNamee on 5/2/14. (REW)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Richard LeGrand Gause,
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No. CV 13-02555-PHX-RCB (MEA)
Plaintiff,
vs.
ORDER
Maricopa County Correctional Health
Services, et al.,
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Defendants.
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On December 13, 2013, Plaintiff Richard LeGrand Gause, who is confined in the
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Maricopa County Fourth Avenue Jail, filed a pro se civil rights Complaint pursuant to 42
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U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a February 4, 2014
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Order, the Court granted the Application to Proceed and dismissed the Complaint
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because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an
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amended complaint that cured the deficiencies identified in the Order.
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On February 14, 2014, Plaintiff filed a Motion for Indigent Legal Representation
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(Doc. 7) and a First Amended Complaint (Doc. 8). On March 21, 2014, he filed a
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“Request for the Courts to Order Maricopa County Correctional Health to Release My
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Medical Records to Me” (Doc. 9). On April 25, 2014, Plaintiff filed a Document
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(Doc. 10) entitled “Verifying the Courts Received My Motions & Why No Response?”
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TERMPSREF
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I.
Statutory Screening of Prisoner Complaints
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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or an officer or an employee of a governmental entity. 28
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U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff
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has raised claims that are legally frivolous or malicious, that fail to state a claim upon
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which relief may be granted, or that seek monetary relief from a defendant who is
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immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
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A pleading must contain a “short and plain statement of the claim showing that the
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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8
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does not demand detailed factual allegations, “it demands more than an unadorned, the-
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defendant-unlawfully-harmed-me accusation.”
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(2009). “Threadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Id.
Ashcroft v. Iqbal, 556 U.S. 662, 678
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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a
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claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,
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550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual
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content that allows the court to draw the reasonable inference that the defendant is liable
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for the misconduct alleged.” Id. “Determining whether a complaint states a plausible
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claim for relief [is] . . . a context-specific task that requires the reviewing court to draw
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on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s
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specific factual allegations may be consistent with a constitutional claim, a court must
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assess whether there are other “more likely explanations” for a defendant’s conduct. Id.
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at 681.
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But as the United States Court of Appeals for the Ninth Circuit has instructed,
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courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338,
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342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less
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stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.
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Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
TERMPSREF
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II.
First Amended Complaint
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In his one-count First Amended Complaint, Plaintiff sues the following
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Defendants at the Maricopa County Fourth Avenue Jail: Dr. Richard Friedman, Dr. Matt,
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Unknown Psychiatrist #1, and Unknown Psychiatrist #2. In his Request for Relief,
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Plaintiff seeks monetary damages, treatment for his injuries, and payment of his medical
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bills.
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Plaintiff alleges violations of his Eighth and Fourteenth Amendment rights
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regarding his medical care. He states that he was involved in a severe motorcycle
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accident in April 2013 and, as a result suffered multiple facial fractures, leg and knee
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fractures, and brain damage. Plaintiff claims he was placed in a full leg brace for 8-12
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weeks, that he has approximately one year to treat his severe short-term memory loss, and
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that he was told to consult with a neuro-psychiatrist for treatment of his brain damage.
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Plaintiff’s allegations concern two time frames: July 1 to August 30, 2013, and
November 11, 2013 to the present.
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A.
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Plaintiff states that on July 1, 2013, he was arrested and that jail intake personnel
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took his cane and his leg brace. Plaintiff contends that he was told he would receive a
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jail-approved brace and cane, but he did not receive them from July 1 to August 30,
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despite submitted numerous health needs request forms.
July 1 to August 30, 2013
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Plaintiff states that he saw Defendant Dr. Matt on July 14, that Defendant Dr. Matt
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had copies of his hospital records and saw that Plaintiff had been ordered to wear a brace
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and use crutches or a cane, but stated that he was “not going to do nothing himself” and
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would order Plaintiff to be seen by Plaintiff’s orthopedist, which could take 6-8 months.
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Plaintiff alleges that his leg was still swollen, he could not walk on it, and could barely
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bend it. Plaintiff states that he was given an Ace bandage and that Defendant Dr. Matt
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told Plaintiff to try to stay off his leg. Plaintiff states that he did not see an orthopedist
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between July 1 and August 30 and alleges that he has severe knee damage because he
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was forced to move around on his leg without a brace and cane.
TERMPSREF
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Plaintiff alleges that he immediately began submitting health needs request forms
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to see a psychiatrist to treat his memory loss, but did not see anyone until August 1, when
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he met with a psychiatric assistant who conducted his initial mental health evaluation,
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scheduled Plaintiff to see a psychiatrist, and told him that it would take no more than ten
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days to see the psychiatrist. Plaintiff states that when he was released on August 30, he
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had not seen a psychiatrist. He claims his memory loss is so severe that he often does not
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remember why he is confined and does not remember names and dates and things he does
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during the day. He claims these are things a neuro-psychiatrist would be able to help him
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with, but he never received any treatment and, therefore, his condition is worsening.
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Plaintiff claims he went to court on August 30 and his attorney told the judge that
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Plaintiff was not receiving any treatment, Plaintiff was not having his basic medical
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needs met, and the doctors were showing deliberate indifference to Plaintiff’s medical
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needs. Plaintiff claims the judge released him to pre-trial services because the medical
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staff at the Jail was not treating Plaintiff in an adequate time frame. Plaintiff asserts that
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he was out of jail for approximately two months, but was rearrested because he forgot a
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court date.
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B.
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Plaintiff claims that he saw Defendant Dr. Matt within a few weeks of his return to
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the Jail, but Defendant Dr. Matt was unable to access Plaintiff’s entire medical file
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because Maricopa County was putting inmate medical records on computers. Plaintiff
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asserts that Defendant Dr. Matt refused to treat Plaintiff’s knee-related medical issues
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without reviewing Plaintiff’s entire medical file, although Defendant Dr. Matt could see
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that Plaintiff could barely walk and Defendant Dr. Matt re-ordered Plaintiff’s nerve
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mediation without reviewing Plaintiff’s entire medical file. Plaintiff states that Defendant
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Dr. Matt told him that once he was able to review Plaintiff’s medical records, he would
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re-order an appointment with an orthopedist if Plaintiff’s medical records revealed that
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Plaintiff had been scheduled to see an orthopedist during his July-August confinement.
November 7, 2013 to Present
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TERMPSREF
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Plaintiff alleges that, as of the time he filed the First Amended Complaint, he still had not
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been seen by an orthopedist.
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Plaintiff also claims that he requested bi-lateral wrist braces and informed
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Defendant Dr. Matt that he had received the wrist braces when he was detained in 2012
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and during his July-August confinement. Plaintiff alleges that Defendant Dr. Matt told
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Plaintiff that the Jail “does not have the resources to re-order [Plaintiff] wrist braces for
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[his] severe carpal tunnel, nerve damage and rheumatoid arthritis everytime [he] get[s]
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out and come[s] back.” Plaintiff states that Defendant Dr. Matt knew Plaintiff had a
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serious need for the wrist braces, stated that he would approve Plaintiff’s family to bring
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in a pair of wrist braces, and asked if Plaintiff he still had the pair the Jail had purchased
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for him in July. Plaintiff alleges that he told Defendant Dr. Matt that the braces were in
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the motel room where he was arrested, that items in the motel room were now lost, and
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that his family was financially unable to afford the braces and he was not in steady
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contact with any family members. Plaintiff states that Defendant Dr. Matt told him that
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the Jail “isn’t financially able to keep buying them for [Plaintiff] either, so maybe [he
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will] quit coming back.”
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Plaintiff states that he eventually saw Defendant Friedman, who did not have
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Plaintiff’s medical records or electronic access to them. Defendant Friedman examined
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Plaintiff’s knee and hands, conducted movement tests, determined Plaintiff “had issues,”
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and told Plaintiff there was nothing he would do for Plaintiff’s knee or hands. Plaintiff
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claims Defendant Friedman stated that he could write orders for wrist braces, a cane, and
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a knee brace, “but most likely the jail will not approve them so he is not going to waste
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the time ordering them.” When Plaintiff requested that Defendant Friedman schedule
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Plaintiff to see an orthopedist, Defendant Friedman stated that he would not. Plaintiff
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alleges that even though he could barely walk, Defendant Friedman stated that Defendant
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Dr. Matt had already made the decision not to schedule an appointment with an
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orthopedist and Defendant Friedman was “not going to go against his orders.” Plaintiff
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TERMPSREF
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states that in January 2014, another doctor ordered the wrist braces, but Plaintiff still has
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not received them.
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Plaintiff contends that upon returning to the Jail in November 2013, he
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immediately began requesting to see a psychiatrist regarding his brain damage and
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memory loss. Plaintiff states that he finally saw Defendant Unknown Psychiatrist #1 at
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the end of December, he told her about his issues, and she told him that “memory loss
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and dementia are symptoms that [the Jail] does not pay her enough to treat[, so] she will
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not treat them.” Plaintiff alleges that when he saw Defendant Unknown Psychiatrist #2
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in January 2014 and told her about his bad memory loss and other brain-related issues,
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she told him that “there is nothing a Dr. can do, only time will heal [him].” Plaintiff
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states that he told Defendant Unknown Psychiatrist #2 that the psychiatric assistant had
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been giving him lessons and exercises that might help his brain, explained that the
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lessons and exercises seemed to be helping, and told Defendant Unknown Psychiatrist #2
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that the psychiatric assistant had told him to ask her about a specific medication. Plaintiff
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alleges that Defendant Unknown Psychiatrist #2 said there were no medications or
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proven treatments to help with brain damage, so she does not condone them. Plaintiff
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claims that the assertion that there is nothing she can do is clearly wrong because his
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original doctor indicated that Plaintiff needed psychiatric care, Defendant Unknown
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Psychiatrist #1 admitted that Plaintiff need care, and the psychiatric assistant admitted
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that Plaintiff needs care and has attempted to help him despite not being fully qualified to
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do so.
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Plaintiff alleges that Defendants have acted with deliberate indifference to his
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medical issue. He claims he has suffered irreparable injury because Defendant Dr. Matt
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failed to replace the cane and knee brace and failed to order wrist braces. He claims the
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failure to provide wrist braces has caused his carpal-tunnel syndrome to progress
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drastically. Plaintiff claims that he has suffered irreparable injury because Defendant
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Friedman refused to treat his knee or hand issues, refused to issue orders for wrist and
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knee braces and a cane, and refused to send him to an orthopedist. He also asserts that
TERMPSREF
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Defendants Unknown Psychiatrist #1 and #2’s failure to treat his brain damage, memory
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loss, and dementia will result in a life-long irreversible brain damage because there is a
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limited time to treat these issues.
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Liberally construed, Plaintiff has stated deliberate indifference claims against
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Defendants Dr. Friedman, Dr. Matt, and Unknown Psychiatrist #1 and #2. The Court
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will require Defendants Dr. Friedman and Dr. Matt to answer the First Amended
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Complaint.
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However, the Court will not direct that service be made on Defendants Unknown
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Psychiatrist #1 and #2 at this time. As a practical matter, it is impossible in most
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instances for the United States Marshal or his designee to serve a summons and
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complaint on an anonymous defendant. Plaintiff may use the discovery process to obtain
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the name of Defendants Unknown Psychiatrist #1 and #2. See Wakefield v. Thompson,
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177 F.3d 1160, 1163 (9th Cir. 1999) (where identity of defendants is unknown prior to
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filing of complaint, plaintiff should be given an opportunity through discovery to identify
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the unknown defendants, unless it is clear that discovery would not uncover the identities
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or that the complaint would be dismissed on other grounds). If Plaintiff later discovers
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the identity of these fictitiously named defendants, Plaintiff should seek to amend his
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First Amended Complaint to name them, in compliance with Rule 15 of the Federal
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Rules of Civil Procedure.
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III.
Motion for Indigent Legal Representation
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In his Motion for Indigent Legal Representation, Plaintiff requests that the Court
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appoint counsel because he has a severe brain injury and suffers from dementia and short-
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term memory loss. He states that he does not believe he is capable of meeting deadlines
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or properly responding to motions and is concerned that he may receive orders from the
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court when he is having a memory blackout.
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There is no constitutional right to the appointment of counsel in a civil case. See
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Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In
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proceedings in forma pauperis, the court may request an attorney to represent any person
TERMPSREF
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unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C.
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§ 1915(e)(1) is required only when “exceptional circumstances” are present. Terrell v.
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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
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exceptional circumstances requires an evaluation of the likelihood of success on the
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merits as well as the ability of Plaintiff to articulate his claims pro se in light of the
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complexity of the legal issue involved. Id. “Neither of these factors is dispositive and
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both must be viewed together before reaching a decision.” Id. (quoting Wilborn v.
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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
A determination with respect to
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Having considered both elements, it does not appear at this time that exceptional
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circumstances are present that would require the appointment of counsel in this case. The
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Court notes that Plaintiff did not miss the deadline imposed in the February 4 Order and
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has been able to adequately articulate his claims on his own. Thus, the Court will deny
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without prejudice Plaintiff’s Motion for Indigent Legal Representation.
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IV.
Request for Release of Medical Records
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Plaintiff requests that the Court order Correctional Health Services to allow
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Plaintiff to review or provide copies of his medical file. He alleges that many of his
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medical records are computerized, inmates are not allowed to access a computer, the cost
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of printing out his medical records is $9,100, and he has been told that he must pay this
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amount in full, despite his indigence, or he will not be permitted to review his medical
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file.
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To the extent Plaintiff is seeking discovery in this case, his request is premature.
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The Court will direct the Clerk of Court to send Plaintiff a service packet containing
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summonses and request for waiver forms for Plaintiff to complete and return to the Court.
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If Plaintiff returns those forms to the Court, the Court will direct the United States
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Marshal to notify the Defendants of the commencement of the action, request waiver of
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service of the summonses, and serve Defendants if they do not waive service. The Court
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will issue a scheduling order setting discovery deadlines after Defendants have answered
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TERMPSREF
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the First Amended Complaint. Thus, the Court will dismiss without prejudice Plaintiff’s
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Request regarding his medical records.
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V.
April 25 Document
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In his April 25 Document, Plaintiff notes that he filed a First Amended Complaint,
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a motion for legal representation, and a request regarding his medical records. He
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requests that the Court “respond soon” to his filings. Plaintiff’s April 25 Document is
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granted to the extent this Order addresses his First Amended Complaint and other filings.
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VI.
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Warnings
A.
Release
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Plaintiff must pay the unpaid balance of the filing fee within 120 days of his
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release. Also, within 30 days of his release, he must either (1) notify the Court that he
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intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to
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comply may result in dismissal of this action.
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B.
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Plaintiff must file and serve a notice of a change of address in accordance with
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Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion
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for other relief with a notice of change of address. Failure to comply may result in
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dismissal of this action.
Address Changes
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C.
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Plaintiff must serve Defendants, or counsel if an appearance has been entered, a
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copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a
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certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also,
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Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv
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5.4. Failure to comply may result in the filing being stricken without further notice to
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Plaintiff.
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D.
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If Plaintiff fails to timely comply with every provision of this Order, including
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these warnings, the Court may dismiss this action without further notice. See Ferdik v.
TERMPSREF
Copies
Possible Dismissal
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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action
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for failure to comply with any order of the Court).
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IT IS ORDERED:
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(1)
without prejudice.
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(2)
(3)
Plaintiff’s April 25, 2013 Document (Doc. 10) is granted to the extent this
Order addresses his First Amended Complaint and other filings.
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Plaintiff’s “Request for the Courts to Order Maricopa County Correctional
Health to Release My Medical Records to Me” (Doc. 9) is denied as premature.
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Plaintiff’s Motion for Indigent Legal Representation (Doc. 7) is denied
(4)
Defendants Dr. Friedman and Dr. Matt must answer the First Amended
Complaint.
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(5)
The Clerk of Court must send Plaintiff a service packet including the First
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Amended Complaint (Doc. 8), this Order, and both summons and request for waiver
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forms for Defendants Dr. Friedman and Dr. Matt.
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(6)
Plaintiff must complete and return the service packet to the Clerk of Court
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within 21 days of the date of filing of this Order. The United States Marshal will not
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provide service of process if Plaintiff fails to comply with this Order.
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(7)
If Plaintiff does not either obtain a waiver of service of the summons or
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complete service of the Summons and First Amended Complaint on a Defendant within
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120 days of the filing of the Complaint or within 60 days of the filing of this Order,
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whichever is later, the action may be dismissed as to each Defendant not served. Fed. R.
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Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(i).
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(8)
The United States Marshal must retain the Summons, a copy of the First
Amended Complaint, and a copy of this Order for future use.
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(9)
The United States Marshal must notify Defendants of the commencement
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of this action and request waiver of service of the summons pursuant to Rule 4(d) of the
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Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this
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Order.
TERMPSREF
The Marshal must immediately file signed waivers of service of the
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summons. If a waiver of service of summons is returned as undeliverable or is not
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returned by a Defendant within 30 days from the date the request for waiver was
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sent by the Marshal, the Marshal must:
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(a)
personally serve copies of the Summons, First Amended Complaint,
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and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of
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Civil Procedure; and
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(b)
within 10 days after personal service is effected, file the return of
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service for Defendant, along with evidence of the attempt to secure a waiver of
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service of the summons and of the costs subsequently incurred in effecting service
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upon Defendant. The costs of service must be enumerated on the return of service
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form (USM-285) and must include the costs incurred by the Marshal for
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photocopying additional copies of the Summons, First Amended Complaint, or
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this Order and for preparing new process receipt and return forms (USM-285), if
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required. Costs of service will be taxed against the personally served Defendant
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pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise
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ordered by the Court.
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(10)
A Defendant who agrees to waive service of the Summons and First
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Amended Complaint must return the signed waiver forms to the United States
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Marshal, not the Plaintiff.
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(11)
Defendants must answer the First Amended Complaint or otherwise
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respond by appropriate motion within the time provided by the applicable provisions of
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Rule 12(a) of the Federal Rules of Civil Procedure.
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(12)
Any answer or response must state the specific Defendant by name on
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whose behalf it is filed. The Court may strike any answer, response, or other motion or
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paper that does not identify the specific Defendant by name on whose behalf it is filed.
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(13)
This matter is referred to Magistrate Judge Mark E. Aspey pursuant to
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Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as
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authorized under 28 U.S.C. § 636(b)(1).
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DATED this 2nd day of May, 2014.
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