Fred Jay Otto v. Ross Quinn et al

Filing 22

ORDER DISMISSING THIRD AMENDED COMPLAINT WITH LEAVE TO AMEND, 21 by Magistrate Judge Alka Sagar. Plaintiffs Third Amended Complaint is DISMISSED with leave to amend. If Plaintiff wishes to further pursue this action, he must file a Fourth Amended Complaint no later than 30 days from the date of this Order. (Attachments: # 1 Civil Rights Complaint Form (Blank), # 2 Notice Of Dismissal Form (Blank)) (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION

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FRED JAY OTTO,

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v.

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) No. ED CV-16-1883-AB (AS)
)
) ORDER DISMISSING THIRD AMENDED
)
) COMPLAINT WITH LEAVE TO AMEND
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)
)
)
)

Plaintiff,

ROSS QUINN, et al.,
Defendants.

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I. INTRODUCTION

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On September 18, 2017, Plaintiff Fred Jay Otto (“Plaintiff”), an

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inmate

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California

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Amended Complaint pursuant to Bivens v. Six Unknown Named Agents of

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Federal Bureau of Narcotics, 403 U.S. 3888 (1971) and the Federal

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Tort Claims Act (“FTCA”), for compensatory damages.

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No. 21 (“TAC”)).1

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dismissal, with leave to amend, of Plaintiff’s Complaint on December

at

the

Federal

(“Victorville

Correctional
I”),

Institute

proceeding

pro

in

se,

Victorville,

filed

a

Third

(Docket Entry

The Third Amended Complaint follows the Court’s

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Pages in the SAC are cited as if they are consecutively
paginated, the first page being “1.”
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28, 2016, his First Amended Complaint on June 14, 2017, and his

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Second Amended Complaint on August 18, 2017.

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16, 19).

(Docket Entry Nos. 11,

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The Court has screened the Third Amended Complaint as prescribed

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by 28 U.S.C. § 1915A(b).

For the reasons discussed below, the Third

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Amended Complaint is DISMISSED with leave to amend.2

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II.

THIRD AMENDED COMPLAINT

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The three-count Third Amended Complaint names two Defendants,

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Ross Quinn (“Quinn”) and L. Carrington (“Carrington”), both in their

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individual

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voluntarily dismissed the following four Defendants who were named in

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his previous pleadings: (1) Warden Randy Tews (“Tews”); (2) Linda

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Aragon (“Aragon”); (3) Franklin Rutledge (“Rutledge”); and (4) the

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United States government.

capacities.

(TAC

at

3,

5,

7,

9,

15-19).

Plaintiff

(Docket Entry No. 20; TAC at 7).

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In Count One, Plaintiff alleges that Quinn violated his First,

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Fifth,

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indifference

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Plaintiff claims that Quinn knowingly and intentionally conspired

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with Dr. Hall, an orthopedic physician, to falsify medical documents

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in order to lower Plaintiff’s medical care inmate level from level

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four (the highest level) to level two.

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documents was a falsified health re-assessment, dated January 28,

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and

Eighth
to

Amendment

Plaintiff’s

rights
medical

2

by

acting

needs.

with
(TAC

(TAC at 15-16).

deliberate
at

15-16).

One of these

A Magistrate Judge may dismiss a complaint with leave to
amend without the approval of a District Judge.
See McKeever v.
Block, 932 F.2d 795, 798 (9th Cir. 1991).
2

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2016, that Plaintiff claims he was not present for.

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a result of the level change, Plaintiff was transferred from the

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Federal

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facility where he was being treated for acute liver disease, throat

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cancer, and debilitating chronic pain, to Victorville I, a level

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three

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orchestrated

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administrative complaints.

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Quinn tell Plaintiff’s Victorville I physician that he was aware of

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Plaintiff’s level four status and that he “personally approved his

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transfer from Butner.”

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allow

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concert with others,” altered Plaintiff’s pain medication, which he

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had been taking for the past twelve years.

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Quinn’s acts and omissions, Plaintiff allegedly suffered “unnecessary

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and wanton infliction of pain.”

Medical

Center

facility.

(Id.

the

Plaintiff

to

in

Butner,

at

15).

transfer

be

North

to

retaliation

(Id. at 16).

(Id.).

Carolina,

According

in

(Id. at 16).

a

level-four

Plaintiff,
for

As

Quinn

Plaintiff’s

Plaintiff allegedly heard

Plaintiff alleges that “Quinn did not

medically

treated

for

anything,”

(Id. at 15).

and,

“in

Because of

(Id. at 16).

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In Count Two, Plaintiff asserts that Carrington violated his

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First,

Fifth,

and

Eighth

Amendment

rights

by

conspiring

and

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retaliating against him, as well as through medical negligence and

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deliberate indifference to Plaintiff’s medical needs.

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18).

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filing administrative grievances by writing him up for improperly

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taking his pain medication.

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medications, Carrington was allegedly aware of a doctor’s order to

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“crush

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Carrington

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fashion.

(Id. at 17-

Plaintiff asserts that Carrington retaliated against him for

and

Carrington

float
had

in

water”

previously

(Id. at 17).
crushed

the

(Id. at 18).

As the administrator of

Plaintiff’s

administered

Oxycodone

Plaintiff’s

pills,

pills

in

and
this

Plaintiff alleges that on February 25, 2016,
Oxycodone
3

pill

into

a

cup

and

ordered

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Plaintiff to consume it without water.

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to Carrington that he could not swallow the crushed pill without

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water because of his dry mouth from the throat cancer and asked for

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water.

(Id. at 17-18).

Carrington refused to provide Plaintiff with

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water,

giving

option

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“sign[ing] a refusal form.”

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swallow the crushed pill, but he unintentionally coughed up a “small

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particle” of the pill, which hit a window.

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ordered Plaintiff to open his mouth and observed small particles

him

the

(Id.).

of

(Id.).

taking

the

(Id. at 18).

Plaintiff explained

pill

as

it

was

or

Plaintiff attempted to

(Id.)

Carrington then

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still in his mouth.

Carrington allegedly stated, “Now I can

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write you up, for abusing your meds, that’s what you get for filing

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complaints, and always coming to my window complaining.

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have some water.”

Now you may

(Id.).

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Count Three of the Third Amended Complaint is a conspiracy claim

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against both Defendants for retaliation and medical negligence in

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violation of Plaintiff’s First, Fifth, and Eighth Amendment rights.

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(Id. at 19).

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Rutledge, the individuals whom Plaintiff voluntarily dismissed from

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the case upon filing the Third Amended Complaint.3

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asserts, among other things, that Quinn ordered the medical staff not

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to treat Plaintiff and to give him only “minimal pain medication[,]

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[c]ontrary to Plaintiff’s medical condition.”

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alleges that “Carrington stated to Plaintiff that they (Staff) are

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here to punish Plaintiff and deviated from policy and protocol for

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the intent of causing unnecessary pain and suffering to Plaintiff.”

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(Id.).

The alleged conspirators include Tews, Aragon, and

(Id.).

(Id.).

Plaintiff

Plaintiff also

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Plaintiff refers to “Defendant Tews” in Count Three here,
(TAC at 19), despite having dismissed Tews.
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III. STANDARD OF REVIEW

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Congress mandates that District Courts initially screen civil

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complaints

filed

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entities or employees.

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such a complaint, or any portion thereof, before service of process,

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if that court concludes that the complaint: (1) is frivolous or

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malicious;

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granted; or (3) seeks monetary relief from a defendant who is immune

(2)

by

prisoners

fails

seeking

redress

28 U.S.C. § 1915A(b).

to

state

a

claim

upon

from

governmental

A court may dismiss

which

relief

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from such relief.

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can

be

28 U.S.C. § 1915A(b)(1)–(2); see also Lopez v.

Smith, 203 F.3d 1122, 1126–27 n.7 (9th Cir. 2000) (en banc).

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To state a claim for which relief may be granted, a complaint

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must

contain

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plausible on its face.”

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570 (2007).

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pleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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must interpret a pro se complaint liberally and construe all material

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allegations of fact in the light most favorable to the plaintiff.

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See

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complaint

[filed

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stringent

standards

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(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

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However,

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conclusions.

See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the

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elements

a

Hebbe

“enough

to

state

a

claim

to

relief

that

is

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

“A claim has facial plausibility when the plaintiff

v.

a

of

statements,

facts

Pliler,
by

court

do

a

627
pro

than

does

cause
not

F.3d
se

338,

prisoner]

formal

not

of

342

pleadings

have

action,

suffice.”).

to

In addition, a court

(9th
‘must

be

drafted

accept

as

supported
Furthermore,

5

Cir.

2010)
held

by

true

by
in

mere

to

(“[A]
less

lawyers.’”)

mere

legal

conclusory

giving

liberal

1

interpretation

to

a

pro

se

complaint,

a

court

may

not

2

essential elements of a claim that were not initially pled.

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supply

Gardner, 976 F.2d 469, 471−72 (9th Cir. 1992).

Pena v.

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IV.

DISCUSSION

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In dismissing Plaintiff’s seven-count Second Amended Complaint

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with leave to amend, the Court pointed to various legal deficiencies

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in his claims and allegations.

The Court also noted, however, that

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two particular claims passed muster: (1) a claim against Quinn for

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deliberate

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retaliation claim against Carrington.

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12-13).

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claims and Defendants, while discarding the other Defendants and most

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of the other claims.

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down, three-count pleading remains deficient in certain respects.

indifference

to

serious

medical

needs

and

(2)

a

(Docket Entry No. 19, at 9,

For the Third Amended Complaint, Plaintiff retains these two

(TAC at 3, 5, 7, 9, 15-19).

But the pared-

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First, while Count Two manages to state a retaliation claim

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against Carrington, this count is deficient to the extent that it

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also

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indifference to serious medical needs.

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claim of deliberate indifference against Carrington because, while

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Carrington’s actions may have caused Plaintiff discomfort from dry

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mouth,

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excessive risk of harm.

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(1994); Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004).

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allegations also fail to establish that Carrington conspired with

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anyone else in the conduct at issue.

attempts

these

to

assert

actions

did

claims

not

of

place

conspiracy

and

deliberate

Plaintiff fails to state a

his

health

or

safety

at

an

Cf. Farmer v. Brennan, 511 U.S. 825, 837

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The

Accordingly, Plaintiff’s Count

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Two

claims

against

Carrington

for

conspiracy

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and

deliberate

indifference must be DISMISSED with leave to amend.

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Second, Count Three fails to state a claim.

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“all

Defendants”

conspired

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that

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negligence.

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conspiracy involving Carrington, and they also fail to show that

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Quinn

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Plaintiff

(TAC at 19).

retaliated
does

or

not,

retaliation

and

medical

Plaintiff’s allegations fail to show any

conspired
for

in

Count Three asserts

to

instance,

retaliate
allege

against

facts

Plaintiff.

showing

a

causal

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connection between Quinn’s actions and Plaintiff’s protected conduct.

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See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (a

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prison

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things, the defendant took adverse action against an inmate because

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of the inmate’s protected conduct).

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DISMISSED with leave to amend.

retaliation

claim

requires

allegations

that,

among

other

Accordingly, Count Three must be

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V. ORDER

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For

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the

reasons

stated

above,

Plaintiff’s

Third

Amended

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Complaint is DISMISSED with leave to amend.

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further pursue this action, he must file a Fourth Amended Complaint

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no later than 30 days from the date of this Order.

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Amended Complaint must cure the pleading defects discussed above and

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shall be complete in itself without reference to prior pleadings.

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See L.R. 15-2 (“Every amended pleading filed as a matter of right or

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allowed by order of the Court shall be complete including exhibits.

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The

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pleading.”).

amended

pleading

shall

not

refer

to

If Plaintiff wishes to

the

prior,

The Fourth

superseding

This means that Plaintiff must again allege and plead

any viable claims that he wishes to retain in the case.
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In any amended complaint, Plaintiff should identify the nature

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of each separate legal claim, identify the defendant(s) against whom

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he brings the claim, and confine his allegations to those operative

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facts supporting each of his claims.

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Civil Procedure 8(a), all that is required is a “short and plain

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statement

of

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relief.”

However, Plaintiff is advised that the allegations in the

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Fourth Amended Complaint should be consistent with the authorities

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discussed above.
new

the

claim

showing

that

Pursuant to Federal Rule of

the

pleader

is

entitled

to

In addition, the Fourth Amended Complaint may not

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include

Defendants

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allegations

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Plaintiff shall indicate in what capacity he sues any defendant(s).

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Plaintiff is strongly encouraged to utilize the standard civil rights

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complaint form when filing any amended complaint, a copy of which is

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attached.

in

the

or

claims

previously

filed

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not

//

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reasonably
complaints.

related

to

the

Furthermore,

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Plaintiff is explicitly cautioned that failure to timely file a

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Fourth

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described above, may result in a recommendation that this action, or

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portions

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prosecute and/or failure to comply with court orders.

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Civ. P. 41(b).

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wishes to pursue this action in its entirety or with respect to

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particular

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any part of this action by filing a Notice of Dismissal in accordance

Amended

Complaint,

thereof,

be

or

failure

dismissed

with

to correct the deficiencies

prejudice

for

failure

See Fed. R.

Plaintiff is further advised that if he no longer

Defendants

or

claims, he may voluntarily dismiss all or

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with Federal Rule of Civil Procedure 41(a)(1).

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Dismissal is attached for Plaintiff’s convenience.

A form Notice of

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IT IS SO ORDERED.

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Dated: October 10, 2017

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to

_____________/s/_____________
ALKA SAGAR
United States Magistrate Judge

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