Adrian A. Woodard v. Wang

Filing 23

ORDER DENYING Defendant's 22 Motion for Re-Screening; ORDER Requiring Response to First Amended Complaint and Request for Preliminary Injunction within Fourteen Days (14) of service of this order, signed by Magistrate Judge Stanley A. Boone on 12/19/2017. (14-Day Deadline) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ADRIAN ALEXANDER WOODARD
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Plaintiff,
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v.
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DR. WANG,
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Defendant.
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Case No.: 1:16-cv-01089-SAB (PC)
ORDER DENYING DEFENDANT’S
REQUEST FOR RE-SCREENING, AND
REQUIRING RESPONSE TO FIRST
AMENDED COMPLAINT
[ECF No. 22]

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Plaintiff Adrian Alexander Woodard is a state prisoner appearing pro se in this civil

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rights action pursuant to 42 U.S.C. § 1983. On January 25, 2017, Plaintiff consented to

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magistrate judge jurisdiction. (ECF No. 6.) On June 30, 2017, Defendant Dr. Wang consented to

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United States Magistrate Judge jurisdiction. (ECF No. 12.)

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Currently before the Court is Defendant’s request for re-screening, waiver of reply, and

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demand for a jury trial, filed on December 15, 2017. (ECF No. 22.) Plaintiff has not filed a

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response, but the Court finds that none is necessary, and that Plaintiff will not be prejudiced by

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the consideration of Defendant’s request. Local Rule 230(l).

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I.

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BACKGROUND

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On March 20, 2017, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. §

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1915A and found that it stated a cognizable claim against Defendant Wang in his individual

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capacity for deliberate indifference to a serious medical need in violation of the Eighth
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Amendment. Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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Following Plaintiff’s notification that he agreed to proceed only on the claim identified as

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cognizable, (ECF No. 8), on April 6, 2017, the Court ordered service to be initiated against Dr.

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Wang and further ordered that the remaining claims were dismissed, (ECF No. 9).

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On October 6, 2017, Plaintiff filed a motion for leave to file an amended complaint,

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including a proposed amended complaint. (ECF No. 19.) Defendant made no response to the

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motion.

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On November 30, 2017, the Court granted Plaintiff’s motion for leave to amend, ordered

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the Clerk of the Court to file Plaintiff’s first amended complaint, and screened the First Amended

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Complaint pursuant to 28 U.S.C. § 1915A. (ECF No. 20.) The Court ordered that this case would

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proceed on Plaintiff’s first amended complaint against Defendant Wang in his individual

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capacity for deliberate indifference to a serious medical need in violation of the Eighth

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Amendment, and required Defendant Wang to respond to the first amended complaint within

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fourteen (14) days. (Id. at 7.) Defendant was further ordered to respond to Plaintiff’s request for

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preliminary injunctive relief. (Id. at 8.)

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Defendant has not filed any response to the first amended complaint. Instead, as noted

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above, on December 15, 2017, Defendant filed the instant request for re-screening, waiver of

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reply, and demand for jury trial.

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II.

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DISCUSSION

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Defendant first requests re-screening of the first amended complaint on the basis that

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some of Plaintiff’s allegations have been substantially revised, including the relief requested in

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the prayer, and that the Court dismiss any claims that it believes are not cognizable, or that are

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frivolous or malicious. Further, Defendant waives his right to reply to the first amended

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complaint pursuant to 42 U.S.C. § 1997e(g). Finally, Defendant demands a jury trial pursuant to

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Federal Rule of Civil Procedure 38(b) and Local Rule 3-6.

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As noted above, in its November 30, 2017 order, the Court considered whether Plaintiff’s

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claim for deliberate indifference to serious medical needs against Defendant Wang in his

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individual capacity, as alleged in the first amended complaint, was frivolous, malicious, fails to

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state a claim, or seeks solely monetary relief from a defendant who is immune. (ECF No. 20) See

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28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). The Court has also considered whether Plaintiff has a

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reasonable opportunity to prevail on the merits of these claims. See 42 U.S.C. § 1997e(g). The

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Court has determined that dismissal of Plaintiff’s claim is not appropriate at this time, and

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Defendant must respond to these claims. See 42 U.S.C. § 1997e(g)(2) (while a defendant may

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occasionally be permitted to “waive the right to reply to any action brought by a prisoner

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confined in any jail, prison, or other correctional facility under section 1983,” once the Court has

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conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus,

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has made a preliminary determination based on the face on the pleading alone that plaintiff has a

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“reasonable opportunity to prevail on the merits,” a defendant is required to respond).

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Defendant specifically noted that Plaintiff altered his requests for relief. To clarify any

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confusion for Defendant, as described in the November 30, 2017 order, the Court found that

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Plaintiff’s new claim for declaratory relief is not cognizable in this action as it is subsumed by

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his claim for damages for the same conduct, and therefore that claim was dismissed. (ECF No.

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20, at p. 7.) The Court also noted that Plaintiff seeks preliminary and permanent injunctive relief,

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and ordered that Defendant must respond to Plaintiff’s request for a preliminary injunction. (Id.

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at 8.) The Court finds no grounds have been presented to re-screen the first amended complaint.
Defendant’s notice of demand for a jury trial is noted for the record.

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III.

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CONCLUSION

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Accordingly, it is HEREBY ORDERED that:

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1.

Defendant’s request to re-screen the complaint is DENIED;

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2.

Defendant Wang shall respond to Plaintiff’s first amended complaint within

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fourteen (14) days of service of this order. Fed. R. Civ. P. 15(a)(3); and

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3.

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Defendant Wang shall respond to Plaintiff’s request for a preliminary injunction

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within fourteen (14) days of service of this order. Plaintiff may file a reply to Defendant’s

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response within seven (7) days of service of the response.

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IT IS SO ORDERED.

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Dated:

December 19, 2017
UNITED STATES MAGISTRATE JUDGE

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