Jackson v. C.D.C.R. et al

Filing 131

ORDER denying 124 Motion for Administrative Relief and Request for Transcripts ; denying 128 Motion to Reinstate defendant Freiha and add Correctional Counselor Curzon (Attachments: # 1 Certificate/Proof of Service) (beS, COURT STAFF) (Filed on 6/30/2014)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 CHARLIE DAVID JACKSON, Plaintiff, 10 11 vs. 12 KEVIN R. CHAPPELL, Warden, et al., 13 Defendants. ) ) ) ) ) ) ) ) ) ) No. C 12-2516 CRB (PR) ORDER DENYING MOTION TO REINSTATE DR. FRIEHA AS A DEFENDANT AND TO ADD CORRECTIONAL COUNSELOR CURZON AS A DEFENDANT (Dkt. #124 & 128) 14 15 Plaintiff, a former prisoner at San Quentin State Prison (SQSP), filed a pro 16 se Third Amended Complaint (TAC) for damages under 42 U.S.C. § 1983 17 alleging denial of mental health treatment at SQSP against Warden Kevin R. 18 Chappell and doctors R. Fong, Frieha (or Freiha), E. Sprick and Burton. Plaintiff 19 specifically alleges that at various times in 2010, doctors R. Fong, Frieha (or 20 Freiha), E. Sprick and Burton denied him treatment for his mental illnesses 21 (including depression and anxiety) despite his asking them for treatment. 22 Per order filed on January 30, 2014, the court found that, liberally 23 construed, plaintiff’s allegations appear to state a cognizable § 1983 claim for 24 deliberate indifference to serious medical needs against doctors R. Fong, Frieha 25 (or Freiha), E. Sprick and Burton, but dismissed Warden Kevin R. Chappell 26 because plaintiff set forth no allegations against Chappell and it is well 27 established that there is no liability under § 1983 solely because one is 28 responsible for the actions or omissions of another. Dkt. #106 at 1-2. 1 The court made clear that plaintiff’s deliberate indifference to serious 2 medical needs claim may proceed against doctors R. Fong (who was previously 3 served), Frieha (or Freiha), E. Sprick and Burton. But the court warned plaintiff 4 that it will not order service of summons and of the TAC on the three unserved 5 defendants – doctors Frieha (or Freiha), E. Sprick and Burton – unless plaintiff 6 “provides a recent address for each of these defendants within 30 days of this 7 order. Failure to do so will result in the dismissal of the unserved defendants and 8 a scheduling order will be issued as to defendant R. Fong only.” Id. at 2. 9 Per order filed on April 4, 2014, the court dismissed without prejudice 10 unserved defendants doctors Frieha (or Freiha), E. Sprick and Burton because 11 “[m]ore than 60 days ha[d] elapsed and plaintiff still ha[d] not provided a recent 12 address for any of the three unserved defendants.” Dkt. #107 at 2. The court 13 noted that the case “will proceed as to defendant doctor R. Fong only” and 14 ordered Dr. Fong to serve and file a dispositive motion within 60 days. Id. 15 Plaintiff then moved to reinstate Dr. Burton as a defendant on the ground 16 that the court improperly dismissed him before attempting to serve him at SQSP. 17 Per order filed on June 2, 2013, the court found plaintiff’s argument “unavailing 18 because plaintiff did not inform the court in the TAC or elsewhere (despite being 19 advised to do so) of a service address for Dr. Burton or either of the two other 20 unserved defendants.” Dkt. #119 at 2. But because Dr. Burton was dismissed 21 without prejudice and plaintiff now submitted that Dr. Burton “is at SQSP,” dkt. 22 #112 at 2, the court granted the motion to reinstate Dr. Burton as a defendant “in 23 the interest of justice and judicial economy” and ordered the United States 24 Marshal to serve Dr. Burton at SQSP. Id. 25 26 Apparently emboldened by the court’s granting of his motion to reinstate Dr. Burton as a defendant, plaintiff now has filed a motion to reinstate Dr. Frieha 27 28 2 1 (or Freiha) as a defendant and to add Correctional Counselor Curzon as a 2 defendant. The motion (dkt. #128) is DENIED as to both Frieha and Curzon. 3 Plaintiff provides no indication of where Dr. Frieha may be served, much less an 4 excuse for his delay in seeking to reinstate her. Nor does plaintiff provide any 5 excuse for his waiting until now to move to add as a defendant a correctional 6 officer/counsel he “mentioned” but did not name as a defendant in the TAC. 7 Moreover, plaintiff’s allegation in the TAC that Curzon denied plaintiff’s request 8 to be placed in administrative segregation for mental health reasons after plaintiff 9 met with Dr. Burton and Curzon and Dr. Burton denied the same request cannot 10 be said to amount to a § 1983 claim for deliberate indifference to serious medical 11 needs against Curzon. Cf. Peralta v. Dillard, 744 F.3d 1076, 1086-87 (9th Cir. 12 2014) (en banc) (prison medical officer without expertise in specific field who 13 denies an inmate appeal for medical care after it was reviewed by two qualified 14 medical officials does not demonstrate a wanton infliction of unnecessary pain). 15 Plaintiff’s motion (dkt. #124) for production of transcripts and copies of 16 all documents in the docket in this matter in order to litigate his recently filed 17 appeal is DENIED. The Ninth Circuit more recently dismissed plaintiff’s appeal 18 for lack of jurisdiction. See Dkt. #123. 19 The clerk is instructed to terminate the motions filed as docket items 20 numbers 124 and 128. 21 SO ORDERED. 22 DATED: June 30, 2014 23 CHARLES R. BREYER United States District Judge 24 25 26 G:\PRO-SE\CRB\CR.12\Jackson, C.12-2516.mtn-re-frieha.wpd 27 28 3

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