Ridout

Filing 7

ORDER of Service. Signed by Judge Edward M. Chen on 10/17/2011. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 10/17/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TERRY LEE RIDOUT,

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Plaintiff,
ORDER OF SERVICE

v.

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For the Northern District of California

United States District Court

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No. C-11-2883 EMC (pr)

G. ELLIS, C.E.O., et al.,

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Defendants.
___________________________________/

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I. INTRODUCTION

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Terry Lee Ridout, Jr., an inmate at the Correctional Training Facility in Soledad, filed this

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pro se civil rights action under 42 U.S.C. § 1983 regarding dental care in prison. His complaint is

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now before the Court for review under 28 U.S.C. § 1915A.

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II.

BACKGROUND

The complaint1 alleges the following: Terry Lee Ridout’s “front bottom-row teeth were in

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various degrees of being broken off, jagged and razor-sharp” when he arrived in the California

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prison system on October 31, 2009. Complaint, p. 3A. The broken teeth allegedly caused him

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routinely to cut his tongue, cheeks and lips. These cuts caused him pain. On some unidentified

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date, the dental department at the CTF “initiated a treatment plan which was an agreed-upon course

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Two actions were opened (i.e., C-11-2883 EMC and C-11-2936 EMC) were opened when
the court received from Plaintiff on different days the materials he had sent to commence a single
action. By separate order in the higher-numbered action, the higher-numbered action has been
closed and the Clerk has been directed to put a copy of the complaint from the higher-numbered
action in this action.

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of action where upon its conclusion of various fillings, extractions, etc., plaintiff would receive

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partials.” Id. at 3E.

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Ridout allegedly had to wait for ten months to receive treatment for his broken teeth. He

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further alleges that he was classified as a dental priority class 2, which was not adequate for the

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expedited care he needed. Id. at 3D. He filed an inmate appeal, which led to him being designated

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as a dental priority class 1C (a better priority), although he later was returned to a dental priority

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class 2. Id. Ridout alleges that, ten months after x-rays showed his sharp-edged teeth, and he had

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endured chronic pain from the condition for ten months, “corrective treatment finally was given” on

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December 27, 2010. Id. at 3E. He allegedly has not, however, received the partial dentures that he
should have received as part of his dental treatment plan.

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For the Northern District of California

United States District Court

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Defendant Jane Doe “breached” Ridout’s dental treatment plan when, on or about April 20,

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2011, she refused to take denture impressions and instead insisted that he have another tooth

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extracted. The regular dentist allegedly had told Ridout to refuse such an extraction. Defendants G.

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Ellis and L. D. Zamora allegedly signed the responses to Ridout’s inmate appeals about his dental

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care.

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III.
A.

DISCUSSION

Review of Complaint

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A federal court must engage in a preliminary screening of any case in which a prisoner seeks

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redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. §

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1915A(a). In its review the Court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b). Pro se

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pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

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(9th Cir. 1990).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right

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secured by the Constitution or laws of the United States was violated and (2) that the violation was

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committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48

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(1988).

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Deliberate indifference to a prisoner’s serious medical needs violates the Eighth

1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133,

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1136 (9th Cir. 1997) (en banc). A prison official violates the Eighth Amendment only when two

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requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious, and (2) the

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official is, subjectively, deliberately indifferent to the inmate’s health or safety. See Farmer v.

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Brennan, 511 U.S. 825, 834 (1994). A “serious” medical need exists if the failure to treat a

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prisoner’s condition could result in further significant injury or the “unnecessary and wanton

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infliction of pain.” See McGuckin, 974 F.2d at 1059. Serious medical needs may include dental

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care needs. See Hunt v. Dental Dep’t., 865 F.2d 198, 200 (9th Cir. 1989) (dental care important

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For the Northern District of California

Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050,

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United States District Court

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medical need of inmates). A prison official exhibits deliberate indifference when he knows of and

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disregards a substantial risk of serious harm to inmate health or safety. See Farmer, 511 U.S. at 837.

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Liberally construed, the complaint states a § 1983 claim against Defendant Jane Doe for

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deliberate indifference to Ridout’s dental needs. Jane Doe allegedly delayed necessary dental care

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by deviating from Ridout’s dental treatment plan. She allegedly refused to take impressions for

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dentures and instead demanded that a tooth be extracted. (The Doe defendant problem is addressed

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in the next section.)

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Liberally construed, the complaint also states a § 1983 claim against Defendants G. Ellis and

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L. D. Zamora for deliberate indifference to Ridout’s dental needs. According to the inmate appeal

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responses signed by them, Defendant Ellis was the chief executive officer of CTF and L.D. Zamora

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was the chief of the California Prison Health Care Services, Office of Third Level Appeals - Health

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Care. Defendants Ellis and Zamora signed in the inmate appeal responses and apparently failed to

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provide an adequate response to Ridout’s dental needs. See Complaint, unnumbered exhibits

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(1/24/2011 second level response to inmate appeal and 5/4/11 third level response to inmate appeal).

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Their liability, if any, will arise from the alleged denial of Ridout’s requests pertaining to ongoing

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dental needs, such as his alleged unfilled need for partial dentures. Their liability is not for a

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procedural due process violation because a prisoner has no due process right to a properly

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functioning inmate appeal system. See Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993). If these

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two Defendants had only denied an inmate appeal about a dental problem that already had occurred

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and was complete (e.g., a single tooth extraction that had been done weeks earlier), there would be

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no liability for a constitutional violation; however, where the problem is an ongoing dental or

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medical need and the request is made in an inmate appeal to remedy the ongoing problem, liability

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for that problem can be based on the denial of an inmate appeal, just as it could be based on the

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denial of a verbal request from the inmate. See generally Jett v. Penner, 439 F.3d 1091, 1098 (9th

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Cir. 206) (supervisor may be liable for deliberate indifference to a serious medical need, for

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instance, if he or she fails to respond to a prisoner’s request for help).

immunity under the Eleventh Amendment to the U.S. Constitution. The Eleventh Amendment bars

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For the Northern District of California

Defendants CTF and the State of California are dismissed because they are entitled to

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United States District Court

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from the federal courts suits against a state by its own citizens, citizens of another state, or citizens

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or subjects of any foreign state. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237-38 (1985).

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Eleventh Amendment immunity also extends to suits against a state agency. See Brown v. Cal.

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Dep’t of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (California Department of Corrections and

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California Board of Prison Terms entitled to 11th Amendment immunity); see also Allison v. Cal.

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Adult Authority, 419 F.2d 822, 823 (9th Cir. 1969) (California Adult Authority and San Quentin

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State Prison not persons within meaning of Civil Rights Act).

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B.

The Doe Defendant Problem

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The use of “Jane Doe” or “John Doe” to identify a defendant is not favored in the Ninth

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Circuit, see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), but sometimes is necessary

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when a plaintiff cannot discover the identity of the defendant before filing the complaint. Although

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the use of a Doe defendant designation is acceptable to withstand dismissal of a complaint at the

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initial review stage, using a Doe defendant designation creates its own problem: that person cannot

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be served with process until he or she is identified by his or her real name.

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Ridout must take steps promptly to discover the full name (i.e., first and last name) of Jane

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Doe and provide that information to the court in an amendment to his pleading. The burden remains

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on the Plaintiff; the Court will not undertake to investigate the names and identities of unnamed

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defendants. Ridout must provide a full name and address for Jane Doe no later than January 30,

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2012, so that she may be served with process.

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Due to Jane Doe’s apparent central role in the denial of dental care to Ridout, it is in the

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interest of justice to wait until she has been served (or dismissed) before setting a briefing schedule

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for dispositive motions from all the Defendants. The Court therefore will not now set a briefing

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schedule. The Court will, however, require that the other two Defendants each file a notice of

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appearance no later than November 23, 2011 so that the Court may be sure that service of process

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has occurred and to facilitate discovery by Ridout.

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IV.
1.

The complaint states cognizable § 1983 claims against Defendants Jane Doe, G. Ellis,

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For the Northern District of California

United States District Court

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CONCLUSION

and L.D. Zamora for Eighth Amendment violations based on their alleged deliberate indifference to

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Plaintiff’s dental needs. All other claims and Defendants are dismissed.

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2.

The Clerk shall issue a summons and the United States Marshal shall serve, without

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prepayment of fees, the summons and a copy of the complaint upon (1) G. Ellis, the chief executive

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officer of the Correctional Training Facility in Soledad; and (2) L.D. Zamora, the chief of the

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California Prison Health Care Services, Office of Third Level Appeals - Health Care in Sacramento.

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3.

Defendants Ellis and Zamora must file and serve a notice of appearance no later than

November 23, 2011.

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Plaintiff must provide to the court the true name and address of Defendant Jane Doe

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no later than January 30, 2012. If he does not provide the information by the deadline, or if Jane

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Doe cannot be served with the information Ridout does provide, she will be dismissed from this

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action.

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5.

All communications by Plaintiff with the Court must be served on a Defendant’s

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counsel by mailing a true copy of the document to Defendant’s counsel. The Court may disregard

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any document which a party files but fails to send a copy of to his opponent. Until a Defendant’s

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counsel has been designated, Plaintiff may mail a true copy of the document directly to Defendant,

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but once a Defendant is represented by counsel, all documents must be mailed to counsel rather than

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directly to that Defendant.

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Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No

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further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required

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before the parties may conduct discovery.

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Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the

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Court informed of any change of address and must comply with the Court’s orders in a timely

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fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every

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pending case every time he is moved to a new facility.

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Plaintiff is cautioned that he must include the case name and case number for this

case on any document he submits to this Court for consideration in this case.

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For the Northern District of California

United States District Court

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8.

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IT IS SO ORDERED.

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Dated: October 17, 2011

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_________________________
EDWARD M. CHEN
United States District Judge

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