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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION 10 11 FRED JAY OTTO, 12 v. 13 14 ) No. ED CV-16-1883-AB (AS) ) ) ORDER DISMISSING THIRD AMENDED ) ) COMPLAINT WITH LEAVE TO AMEND ) ) ) ) ) Plaintiff, ROSS QUINN, et al., Defendants. 15 16 17 I. INTRODUCTION 18 19 On September 18, 2017, Plaintiff Fred Jay Otto (“Plaintiff”), an 20 inmate 21 California 22 Amended Complaint pursuant to Bivens v. Six Unknown Named Agents of 23 Federal Bureau of Narcotics, 403 U.S. 3888 (1971) and the Federal 24 Tort Claims Act (“FTCA”), for compensatory damages. 25 No. 21 (“TAC”)).1 26 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 27 28 1 Pages in the SAC are cited as if they are consecutively paginated, the first page being “1.” 1 1 28, 2016, his First Amended Complaint on June 14, 2017, and his 2 Second Amended Complaint on August 18, 2017. 3 16, 19). (Docket Entry Nos. 11, 4 5 The Court has screened the Third Amended Complaint as prescribed 6 by 28 U.S.C. § 1915A(b). For the reasons discussed below, the Third 7 Amended Complaint is DISMISSED with leave to amend.2 8 9 II. THIRD AMENDED COMPLAINT 10 11 The three-count Third Amended Complaint names two Defendants, 12 Ross Quinn (“Quinn”) and L. Carrington (“Carrington”), both in their 13 individual 14 voluntarily dismissed the following four Defendants who were named in 15 his previous pleadings: (1) Warden Randy Tews (“Tews”); (2) Linda 16 Aragon (“Aragon”); (3) Franklin Rutledge (“Rutledge”); and (4) the 17 United States government. capacities. (TAC at 3, 5, 7, 9, 15-19). Plaintiff (Docket Entry No. 20; TAC at 7). 18 19 In Count One, Plaintiff alleges that Quinn violated his First, 20 Fifth, 21 indifference 22 Plaintiff claims that Quinn knowingly and intentionally conspired 23 with Dr. Hall, an orthopedic physician, to falsify medical documents 24 in order to lower Plaintiff’s medical care inmate level from level 25 four (the highest level) to level two. 26 documents was a falsified health re-assessment, dated January 28, 27 28 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 1 2016, that Plaintiff claims he was not present for. 2 a result of the level change, Plaintiff was transferred from the 3 Federal 4 facility where he was being treated for acute liver disease, throat 5 cancer, and debilitating chronic pain, to Victorville I, a level 6 three 7 orchestrated 8 administrative complaints. 9 Quinn tell Plaintiff’s Victorville I physician that he was aware of 10 Plaintiff’s level four status and that he “personally approved his 11 transfer from Butner.” 12 allow 13 concert with others,” altered Plaintiff’s pain medication, which he 14 had been taking for the past twelve years. 15 Quinn’s acts and omissions, Plaintiff allegedly suffered “unnecessary 16 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). 17 In Count Two, Plaintiff asserts that Carrington violated his 18 19 First, Fifth, and Eighth Amendment rights by conspiring and 20 retaliating against him, as well as through medical negligence and 21 deliberate indifference to Plaintiff’s medical needs. 22 18). 23 filing administrative grievances by writing him up for improperly 24 taking his pain medication. 25 medications, Carrington was allegedly aware of a doctor’s order to 26 “crush 27 Carrington 28 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 1 Plaintiff to consume it without water. 2 to Carrington that he could not swallow the crushed pill without 3 water because of his dry mouth from the throat cancer and asked for 4 water. (Id. at 17-18). Carrington refused to provide Plaintiff with 5 water, giving option 6 “sign[ing] a refusal form.” 7 swallow the crushed pill, but he unintentionally coughed up a “small 8 particle” of the pill, which hit a window. 9 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 10 still in his mouth. Carrington allegedly stated, “Now I can 11 write you up, for abusing your meds, that’s what you get for filing 12 complaints, and always coming to my window complaining. 13 have some water.” Now you may (Id.). 14 15 Count Three of the Third Amended Complaint is a conspiracy claim 16 against both Defendants for retaliation and medical negligence in 17 violation of Plaintiff’s First, Fifth, and Eighth Amendment rights. 18 (Id. at 19). 19 Rutledge, the individuals whom Plaintiff voluntarily dismissed from 20 the case upon filing the Third Amended Complaint.3 21 asserts, among other things, that Quinn ordered the medical staff not 22 to treat Plaintiff and to give him only “minimal pain medication[,] 23 [c]ontrary to Plaintiff’s medical condition.” 24 alleges that “Carrington stated to Plaintiff that they (Staff) are 25 here to punish Plaintiff and deviated from policy and protocol for 26 the intent of causing unnecessary pain and suffering to Plaintiff.” 27 (Id.). The alleged conspirators include Tews, Aragon, and (Id.). (Id.). Plaintiff Plaintiff also 28 3 Plaintiff refers to “Defendant Tews” in Count Three here, (TAC at 19), despite having dismissed Tews. 4 1 III. STANDARD OF REVIEW 2 Congress mandates that District Courts initially screen civil 3 4 complaints filed 5 entities or employees. 6 such a complaint, or any portion thereof, before service of process, 7 if that court concludes that the complaint: (1) is frivolous or 8 malicious; 9 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 10 from such relief. 11 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). 12 To state a claim for which relief may be granted, a complaint 13 14 must contain 15 plausible on its face.” 16 570 (2007). 17 pleads factual content that allows the court to draw the reasonable 18 inference that the defendant is liable for the misconduct alleged.” 19 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 20 must interpret a pro se complaint liberally and construe all material 21 allegations of fact in the light most favorable to the plaintiff. 22 See 23 complaint [filed 24 stringent standards 25 (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 26 However, 27 conclusions. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the 28 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. 3 supply Gardner, 976 F.2d 469, 471−72 (9th Cir. 1992). Pena v. 4 5 IV. DISCUSSION 6 7 In dismissing Plaintiff’s seven-count Second Amended Complaint 8 with leave to amend, the Court pointed to various legal deficiencies 9 in his claims and allegations. The Court also noted, however, that 10 two particular claims passed muster: (1) a claim against Quinn for 11 deliberate 12 retaliation claim against Carrington. 13 12-13). 14 claims and Defendants, while discarding the other Defendants and most 15 of the other claims. 16 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- 17 18 First, while Count Two manages to state a retaliation claim 19 against Carrington, this count is deficient to the extent that it 20 also 21 indifference to serious medical needs. 22 claim of deliberate indifference against Carrington because, while 23 Carrington’s actions may have caused Plaintiff discomfort from dry 24 mouth, 25 excessive risk of harm. 26 (1994); Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). 27 allegations also fail to establish that Carrington conspired with 28 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 6 The Accordingly, Plaintiff’s Count 1 Two claims against Carrington for conspiracy 2 and deliberate indifference must be DISMISSED with leave to amend. 3 Second, Count Three fails to state a claim. 4 “all Defendants” conspired 5 that 6 negligence. 7 conspiracy involving Carrington, and they also fail to show that 8 Quinn 9 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 10 connection between Quinn’s actions and Plaintiff’s protected conduct. 11 See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (a 12 prison 13 things, the defendant took adverse action against an inmate because 14 of the inmate’s protected conduct). 15 DISMISSED with leave to amend. retaliation claim requires allegations that, among other Accordingly, Count Three must be 16 17 V. ORDER 18 For 19 the reasons stated above, Plaintiff’s Third Amended 20 Complaint is DISMISSED with leave to amend. 21 further pursue this action, he must file a Fourth Amended Complaint 22 no later than 30 days from the date of this Order. 23 Amended Complaint must cure the pleading defects discussed above and 24 shall be complete in itself without reference to prior pleadings. 25 See L.R. 15-2 (“Every amended pleading filed as a matter of right or 26 allowed by order of the Court shall be complete including exhibits. 27 The 28 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. 7 1 In any amended complaint, Plaintiff should identify the nature 2 of each separate legal claim, identify the defendant(s) against whom 3 he brings the claim, and confine his allegations to those operative 4 facts supporting each of his claims. 5 Civil Procedure 8(a), all that is required is a “short and plain 6 statement of 7 relief.” However, Plaintiff is advised that the allegations in the 8 Fourth Amended Complaint should be consistent with the authorities 9 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 10 include Defendants 11 allegations 12 Plaintiff shall indicate in what capacity he sues any defendant(s). 13 Plaintiff is strongly encouraged to utilize the standard civil rights 14 complaint form when filing any amended complaint, a copy of which is 15 attached. in the or claims previously filed 16 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 not // 8 reasonably complaints. related to the Furthermore, 1 Plaintiff is explicitly cautioned that failure to timely file a 2 Fourth 3 described above, may result in a recommendation that this action, or 4 portions 5 prosecute and/or failure to comply with court orders. 6 Civ. P. 41(b). 7 wishes to pursue this action in its entirety or with respect to 8 particular 9 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 10 with Federal Rule of Civil Procedure 41(a)(1). 11 Dismissal is attached for Plaintiff’s convenience. A form Notice of 12 13 IT IS SO ORDERED. 14 15 Dated: October 10, 2017 16 17 18 to _____________/s/_____________ ALKA SAGAR United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 9

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