Rhodes v. Fresno County, et al.

Filing 71

ORDER DIRECTING Clerk of Court to Randomly Assign a United States District Judge; FINDINGS and RECOMMENDATIONS Recommending Dismissal of Certain Claims and Defendants signed by Magistrate Judge Stanley A. Boone on 11/30/2017. Referred to Judge Dale A. Drozd. Objections to F&R due by 12/18/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PERCY LEE RHODES,

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Plaintiff,

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v.

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FRESNO COUNTY, et al.,

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Defendants.

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Case No.: 1:15-cv-01714-SAB (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN A UNITED STATES
DISTRICT JUDGE
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF CERTAIN
CLAIMS AND DEFENDANTS
[ECF Nos. 25, 29, 36, 37]

Plaintiff Percy Lee Rhodes is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Plaintiff consented to United States Magistrate Judge jurisdiction on November 5, 2015. (ECF

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No. 5.) To date, the Defendants who have appeared in the action have not consented or declined to

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United States Magistrate Judge jurisdiction.

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On December 8, 2016, the Court screened Plaintiff’s second amended complaint and found

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that it stated a cognizable claim against Defendants Vivian, L. Her, Pat Alexander, K. Nunez, Jennifer

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Horton, Dr. Ravijot Gill and Laure Rodriguez for deliberate indifference to a serious medical need

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under the Fourteenth Amendment. (ECF No. 29.) However, the Court found that Plaintiff failed to

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state any other cognizable claim against any other Defendants. (Id.) Plaintiff was directed to either

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file a third amended complaint or notify the Court of his intent to proceed only on the claims found to

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be cognizable. (Id.)
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On March 13, 2017, Plaintiff notified the Court of his intent to proceed only on the claims

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found to be cognizable. (ECF No. 36.) Therefore, on March 16, 2017, the Court found that service

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was appropriate as to Defendants Vivian, L. Her, Pat Alexander, K. Nunez, Jennifer Horton, Dr.

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Ravijot Gill and Laure Rodriguez for deliberate indifference to a serious medical need under the

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Fourteenth Amendment. (ECF No. 37.) The Court dismissed all other claims and Defendants for

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failure to state a cognizable claim for relief. (Id.) The Court indicated that jurisdiction existed under

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28 U.S.C. § 636(c) based on the fact that Plaintiff had consented to Magistrate Judge jurisdiction and

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no other parties had yet appeared. (Id.)

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On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. § 636(c)(1)

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requires the consent of all named plaintiffs and defendants, even those not served with process, before

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jurisdiction may vest in a Magistrate Judge to dispose of a civil case. Williams v. King, __ F.3d __,

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Case No. 15-15259, 2017 WL 5180205, *3 (9th Cir. Nov. 9, 2017). Accordingly, the Court did not

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have jurisdiction to dismiss the claims and Defendants in its March 16, 2017 order.

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Based upon the foregoing, the undersigned will now recommend to the District Judge that this

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case continue to proceed only on Plaintiff’s cognizable claims, and that the claims and Defendants

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described below be dismissed, for the reasons explained herein.

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I.

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SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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A complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally
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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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In the second amended complaint, Plaintiff names Nurse Vivian, Nurse Practitioner Pat

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Alexander, Captain Jennifer Horton, Lieutenant K. Nunez, Senior Official L. Her, Registered Nurse D.

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Lang, Dr. Ravijot Gill, Licensed Vocational Nurse Laure Rodriguez, and Does 1 to 10, as Defendants.

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Plaintiff alleges as follows. On July 28, 2014, at approximately 5:00 p.m., Nurse Vivian, while

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reading instructions from a book to change Plaintiff’s foley catheter with foley insertion by hand

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punched a hole internally causing him to bleed. Defendant Nurse Vivian did nothing to stop the

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bleeding which led to difficulty passing urine, infection, weeks of fevers, sweats, burning in penis,

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abdominal pain, nausea and vomiting three times a day.

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Nurse Vivian denied, delayed, and prohibited Plaintiff’s serious medical needs causing him

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unnecessary pain and suffering and proximate cause of his injury sustained. Nurse Vivian ignored

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Plaintiff’s cry for help and knew Plaintiff was injured when he jumped from the injury and the pain

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from the foley insertion.

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On July 29, 2014, at approximately 6:00 p.m., Defendant Senior Official L. Her called Plaintiff
back for a follow-up and was advised by officer Her it would be a long time because the office was

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busy. Plaintiff had been bleeding now for almost twenty-eight hours, and was forced to hold his urine

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and make bowel movements unscheduled and in his clothing.
On July 30, 2014, at approximately 4:00 p.m., Plaintiff was unable to hold his urine and blood

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again filled his catheter. Plaintiff contacted Senior Official L. Her who said he would help but failed

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to do so. Defendant Officer L. Her knew about Plaintiff’s injury, saw the blood in his catheter, knew

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he was bleeding, knew his catheter was not working, knew Plaintiff was unable to hold his urine and

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make bowel movements unscheduled and in his clothing.
On July 31, 2014, at approximately 5:00 p.m., Plaintiff was taken to the infirmary to see Nurse

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Practitioner Pat Alexander, who said we are not going to do anything until Plaintiff could see another
physician in three days.

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Defendant Registered Nurse D. Lang, knew about Plaintiff’s serious medical needs, knew

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about Dr. Eileen Shu’s follow-up recommendations after Plaintiff was released from Community

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Medical Center, and knew of Plaintiff’s symptoms yet failed to follow Dr. Shu’s recommendations.

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On September 29, 2014, Plaintiff was transferred to Wasco State Prison, at which time he was very

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sick, weak, and in severe pain. There was no follow-up treatment provided from August 26, 2014

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through September 29, 2014.
Defendant Lieutenant K. Nunez knew Plaintiff filed a request to see a doctor for his injuries

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suffered to Corizon Health Care Services under Log # 1433440. Defendant K. Nunez failed to assist

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Plaintiff in obtaining medical treatment.
Defendant Captain Jennifer Horton knew that on or about August 16, 2014, Nurse Vivian

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attempted to remove Plaintiff’s catheter. Defendant Captain Jennifer Horton knew about Plaintiff’s

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grievance request Log # 2014080034 requesting medical services, yet failed to provide assistance.
Defendants Does 1 through 10 and Dr. Gill knew Plaintiff had prior kidney/bladder failure due

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to infection. On August 26, 2014, Dr. Gill knew Plaintiff was in need of emergency medical services

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but failed to provide such assistance. Plaintiff requested medical treatment under Corizon Health Care

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Services from September 2, 2014 to September 29, 2014, but his requests were ignored.

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Defendants Does 1 through 10 and Licensed Vocational Nurse Laure Rodriguez knew Plaintiff

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requested medical health services follow-up treatment medication due to her documentation on a clinic

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encounter form on September 2, 2014, at two separate times.
Plaintiff seeks declaratory judgment and monetary damages.

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IV.

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DISCUSSION

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A.

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“Claims by pretrial detainees [such as Plaintiff here] are analyzed under the Fourteenth

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Deliberate Indifference to Serious Medical Need

Amendment Due Process Clause, rather than the Eighth Amendment [, which applies to prisoners in

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custody pursuant to a judgment of conviction].” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

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Where a plaintiff alleges inadequate medical care, however, “pretrial detainees’ rights under the

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Fourteenth Amendment are comparable to prisoners’ rights under the Eighth Amendment, [so] we

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apply the same standards.” Id.
While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical

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care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to

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an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled

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in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v.

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Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition

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could result in further significant injury or the unnecessary and wanton infliction of pain,” and (2) that

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“the defendant’s response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing

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Jett, 439 F.3d at 1096). Deliberate indifference is shown by “(a) a purposeful act or failure to respond

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to a prisoner’s pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680

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F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective

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recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and

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quotation marks omitted); Wilhelm, 680 F.3d at 1122.

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Based on the factual Plaintiff’s allegations in the second amended complaint viewed in the

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light most favorable to him, Plaintiff states a cognizable claim for deliberate indifference to a serious

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medical need against Defendants Vivian, L. Her, Pat Alexander, K. Nunez, Jennifer Horton, Dr.

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Ravijot Gill and Laure Rodriguez.

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B.

Defendant Registered Nurse D. Lang

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Plaintiff’s allegations fail to give rise to a cognizable claim against Defendant Registered

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Nurse D. Lang. With regard to D. Lang, Plaintiff merely alleges that he knew about Plaintiff’s serious

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medical needs and knew of Dr. Shu’s follow-up recommendation but failed to provide treatment.

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Plaintiff’s allegations are nothing more than mere conclusory assertions devoid of sufficient factual

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support to support a plausible inference of D. Lang’s specific knowledge of Plaintiff’s medical

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condition. Accordingly, Plaintiff fails to state a cognizable claim against Registered Nurse D. Lang.

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C.

Doe Defendants 1 Through 10

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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other

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federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092

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(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of substantive rights,

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but merely provides a method for vindicating federal rights elsewhere conferred.” Crowley v. Nevada

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ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v. Connor, 490 U.S.

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386, 393-94 (1989)) (internal quotation marks omitted). To state a claim, Plaintiff must allege facts

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demonstrating the existence of a link, or causal connection, between each defendant’s actions or

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omissions and a violation of his federal rights. Lemire v. California Dep’t of Corr. and Rehab., 726

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F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).
In the second amended complaint, Plaintiff names Does 1 to 10 as Defendants, but fails to link

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those individuals to any affirmative act or omission giving rise to the alleged constitutional violation.

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Accordingly, Plaintiff fails to state a cognizable claim against Does 1 through 10.

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D.

Declaratory Judgment

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Plaintiff seeks a declaratory judgment that his Eighth Amendment rights were violated. “A

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declaratory judgment, like other forms of equitable relief, should be granted only as a matter of

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judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Village, 333

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U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful purpose

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in clarifying and settling the legal relations in issue nor terminate the proceedings and afford relief

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from the uncertainty and controversy faced by the parties.” United States v. Washington, 759 F.2d

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1353, 1357 (9th Cir. 1985). In the event that this action reaches trial and the jury returns a verdict in

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favor of Plaintiff, that verdict will be a finding that Plaintiff’s constitutional rights were violated.

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Accordingly, a declaration that any Defendant violated Plaintiff’s rights is unnecessary and this action

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shall proceed for monetary damages.

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IV.

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RECOMMENDATIONS

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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This action proceed against Defendants Vivian, L. Her, Pat Alexander, K. Nunez,

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Jennifer Horton, Dr. Ravijot Gill and Laure Rodriguez for deliberate indifference to a serious medical

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need under the Fourteenth Amendment;
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cognizable claim for relief; and
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All other claims and Defendants be dismissed from the action for failure to state a

The Office of the Clerk is directed to randomly assign this matter to a United States

District Judge.
These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days

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after being served with these Findings and Recommendations, the parties may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” The parties are advised that failure to file objections within the specified time

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may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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November 30, 2017
UNITED STATES MAGISTRATE JUDGE

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