Greschner v. California Department of Corrections & Rehabilitation, et al.

Filing 25

ORDER signed by Magistrate Judge Allison Claire on 12/16/19 ORDERING that defendant Rohlfing shall file and serve his reply to plaintiffs First Amended Complaint within 21 days after the filing date of this order. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN GRESCHNER,

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No. 2:15-cv-1663 MCE AC P

Plaintiff,

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v.

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ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

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Defendants.

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Pursuant to 42 U.S.C. § 1997e(g)(1),1 defendant Jeffrey Rohlfing, through counsel, waives

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his right to reply to the First Amended Complaint (FAC) filed by plaintiff, a state prisoner, on

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April 22, 2019. Pursuant to 42 U.S.C. § 1997e(g)(2) and the reasons set forth below, defendant

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Rohlfing is directed to file a reply to the FAC.

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On October 2, 2019 this court directed the United States Marshal to serve a copy of the

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summons, FAC and related materials on four defendants, including CDCR physician Rohlfing.

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ECF No. 21. Rohlfing states that he received service on November 1, 2019. ECF No. 24 at 1.

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No other defendant has yet appeared in this action.

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While it is clear this is the statute upon which defendant relies, defendant incorrectly cites to 42
U.S.C. § 1997(d)(g) and §(e)(g). ECF No. 24.
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42 U.S.C. § 1997e(g)(1) provides:

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Any defendant may waive the right to reply to any action brought by
a prisoner confined in any jail, prison, or other correctional facility
under section 1983 of this title or any other Federal law.
Notwithstanding any other law or rule of procedure, such waiver
shall not constitute an admission of the allegations contained in the
complaint. No relief shall be granted to the plaintiff unless a reply
has been filed.

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Under 42 U.S.C. § 1997e(g)(2), “[t]he court may require any defendant to reply to a

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complaint brought under this section if it finds that the plaintiff has a reasonable opportunity to

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prevail on the merits.”

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The court’s screening of this case pursuant to 42 U.S.C. § 1997(c), particularly its analysis

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of plaintiff’s allegations against defendant Rohlfing, demonstrated that plaintiff has a reasonable

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opportunity to prevail on the merits of his Eighth Amendment medical deliberate indifference

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claim against Rohlfing. The court stated in pertinent, ECF No. 18 at 4-6:

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Defendant Dr. Jeffrey Rolfing,2 a CDCR physician at HDSP,
provided plaintiff’s aftercare. Plaintiff alleges that upon his return to
HDSP after surgery, Dr. Rolfing “was deliberately indifferent to my
serious medical needs when he refused to change my filthy
dressings.” ECF No. 15 at 5. Plaintiff alleges that his surgical site
became infected as a result of the allegedly defective hernia mesh,
yet Dr. Rolfing refused to treat it, “making plaintiff change dressings
and do self care due to no alternative.” Id. More specifically, plaintiff
alleges, id. (with minor edits):

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Doctor Rolfing stated to plaintiff: We don’t change the
dressings. We let them fall off on their own. This was after
plaintiff told Dr. Rolfing that plaintiff was forced to put toilet
paper over the open stomach wound which was oozing
infectious pus, as the original surgical dressing was filled
with infected pus. Plaintiff knew that he wasn’t going to
receive any help from Dr. Rolfing, so he told him to give
plaintiff dressing so he could self care. This caused the
infection to rage in plaintiff for 6-8 months, and the surgical
incision site would not close for over 90 days. This caused
permanent nerve & tissue damages, pain and suffering. . . .
chronic, intractable pain & suffering, requiring life-long pain
medications, which is worsening as time passes. Plaintiff
suffers from mental pain & emotional suffering due to the
unrelenting burning nerve pain & damages, w/sleep
deprivation, daily life function impairment via cognitive
disabilities, mobility impairment, and rage.

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The court used the incorrect spelling of defendant Rohlfing’s name as it was set forth in the
FAC.
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The court finds plaintiff’s allegations against defendant Rolfing
sufficient to state a cognizable Eighth Amendment claim for
deliberate indifference to plaintiff’s serious medical needs.
Specifically, a viable claim is stated by the allegations that Dr.
Rolfing knowingly refused to treat plaintiff’s open, pus-filled
surgical site, resulting in a prolonged infection of the site, scarring,
and chronic pain. See Farmer v. Brennan, 511 U.S. 825, 845, 847
(1994) (a prison official acts with deliberate indifference if “he
knows that inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate
it”). Although further development of the facts may show that
plaintiff’s decision to “self care” deprived Dr. Rolfing of a
reasonable opportunity to assess the seriousness of plaintiff’s
medical needs and/or to treat those needs, the allegations as framed
are sufficient to state an Eighth Amendment deliberate indifference
claim against Rolfing.

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Notwithstanding the statutory option of a defendant in a prisoner civil rights actions to

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waive his or her right to reply, it is the policy of this court to routinely require such replies, as

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demonstrated by the language of the court’s recently adopted Electronic Service orders (directing

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that “[i]f a defendant waives service or is personally served, he will be required to reply to the

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complaint. 42 U.S.C. § 1997e(g)(2).”). Moreover, the Ninth Circuit Court of Appeals has

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expressly urged district courts to require replies from defendants in prisoner civil rights cases “to

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the aid the court” in its determinations. See e.g. Turner v. Morris, 165 F.3d 918 (9th Cir. 1998)

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(Table), 1998 WL 833616 (9th Cir. 1998).

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Accordingly, IT IS HEREBY ORDERED that defendant Rohlfing shall file and serve his

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reply to plaintiff’s First Amended Complaint within twenty-one (21) days after the filing date of

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this order.

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DATED: December 16, 2019

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