Gibbs v. Carson et al

Filing 94

ORDER GRANTING 83 89 Plaintiff's Motions for Leave to File Second Amended Complaint; GRANTING 81 Plaintiffs' Motions to Reinstate Defendant Acosta; DENYING WITHOUT PREJUDICE 44 Defendants' Motion to Dismiss; SERVING Unserved Defendants. Dispositive Motion due by 7/15/2014. Signed by Judge Thelton E. Henderson on 05/13/2014. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 5/13/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C-13-0860 TEH (PR)

KENNETH GIBBS,
Plaintiff,

ORDER GRANTING PLAINTIFF’S
MOTIONS FOR LEAVE TO FILE
SECOND AMENDED COMPLAINT;
GRANTING PLAINTIFF’S MOTION TO
REINSTATE DEFENDANT ACOSTA;
DENYING WITHOUT PREJUDICE
DEFENDANTS’ MOTIONS TO DISMISS;
SERVING UNSERVED DEFENDANTS

v.
CARSON, et al.,
Defendants.

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/

(Doc. nos. 44, 81, 83, 87, 89)

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On February 26, 2013, Plaintiff Kenneth Gibbs, an inmate

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at California State Prison-Sacramento (CSP-SAC), filed this civil

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rights action under 42 U.S.C. § 1983 raising twenty-three claims

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against forty defendants who worked at Pelican Bay State Prison

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(PBSP), where Plaintiff was formerly incarcerated.

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2013, the Court issued an Order dismissing the complaint with leave

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to amend and, on May 8, 2013, Plaintiff filed a first amended

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complaint (FAC).

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On April 24,

On May 16, 2013, the Court ordered service of eight
cognizable claims against twelve defendants.

The claims found to be

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cognizable were: (1) an Eighth Amendment claim for deliberate

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indifference to serious medical needs against Dental Assistant

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Tupman; (2) an Eighth Amendment claim for deliberate indifference to

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serious medical needs against Dr. Crinklaw and Dr. Malo-Clines;

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(3) a First Amendment retaliation claim against Lt. Diggle for

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issuing a Rules Violation Report (RVR) against Plaintiff; (4) a

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First Amendment retaliation claim against Warden Lewis and Capt.

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Wood for transferring Plaintiff in order to force him to withdraw an

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administrative appeal; (5) a First Amendment retaliation claim

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against Counselor Royal, Officer Milton, and Capt. Wood for placing

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Plaintiff on C status in retaliation for Plaintiff’s filing

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administrative appeals; (6) a due process claim against Lt. Anthony

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for denying Plaintiff’s right to a witness at a disciplinary

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hearing; (7) an Eighth Amendment claim against Sgt. Acosta and

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Officer Castellaw for cruel and unusual punishment for leaking

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information about Plaintiff to other inmates; and (8) an Eighth

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Amendment claim against Officer Evans for using excessive force

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against Plaintiff.

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On July 22, 2013, the Court received a letter from

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Plaintiff stating that Sgt. Acosta did not use excessive force

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against him.

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voluntarily dismiss the claims against Sgt. Acosta and, on August 1,

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2013, dismissed Sgt. Acosta from the action.

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The Court construed this as Plaintiff’s motion to

Plaintiff has filed two motions for leave to amend the

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complaint as well as a motion to reinstate Defendant Sgt. Acosta.

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Also before the Court are: a motion to dismiss filed by Defendants

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Evans, Royal, Lewis, Milton, Diggle, and Wood; and a separate motion

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to dismiss filed by Defendants Anthony, Castellaw, and Tupman.

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Plaintiff seeks leave to file a second amended complaint

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(SAC) adding Dr. Thomas J. Martinelli as a defendant on his Eighth

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Amendment claim for deliberate indifference to serious medical

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needs.

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2008, Dr. Martinelli performed a colonoscopy on Plaintiff at Sutter

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Coast Hospital.

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contaminated and unsanitary instruments during the procedure,

In his proposed SAC, Plaintiff alleges that on April 25,

Plaintiff further alleges that Dr. Martinelli used

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causing Plaintiff to become infected with herpes.

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liberally construed, state a claim of deliberate indifference

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against Dr. Martinelli.

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These claims,

Plaintiff correctly points out he originally filed his

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claim against Dr. Martinelli in Case. No. C. 13-02529 TEH (PR).

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This Court found the claims duplicative of the claims asserted in

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the instant action and dismissed Case. No. C. 13-02529.

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however, specifically granted Plaintiff leave to file an SAC in the

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instant action to add Dr. Martinelli as a defendant.

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C. 13-02529 TEH (PR) at Dkt. 6.)

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SAC is proper, and his pending motions for leave to file the SAC are

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GRANTED.1

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The Court,

(See Case. No.

Accordingly, Plaintiff’s proposed

Because the SAC does not add new claims or new defendants

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In its June 20, 2013 Order dismissing Case No. C. 13-02529
TEH (PR), the Court directed Plaintiff to file an SAC in this action
within twenty-one days, i.e., by July 10, 2013. Plaintiff states that
he attempted to file his SAC in July 2013, but that it was returned
to him. There is no record of an SAC filed in July 2013. The Court
will, however, accept as true Plaintiff’s representation that he
attempted to file a timely SAC.
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other than Dr. Martinelli, the Court will not issue a new screening

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order.

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cognizable in the Court’s order of May 16, 2013 as well as the

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Eighth Amendment deliberate indifference claim against Dr.

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Martinelli, found cognizable herein.

Rather, the action will proceed on the eight claims found

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II

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Plaintiff has filed a motion to reinstate Defendant Sgt.

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Acosta in which Plaintiff clarifies that his July 22, 2013 letter

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was not intended as a voluntary dismissal of Defendant Acosta.

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Plaintiff states that his letter was intended to notify the Court of

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an error in the Court’s May 6, 2013 Service Order.

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the body of the Order, the Court found that Plaintiff had stated a

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cognizable Eighth Amendment claim against Defendant Acosta for cruel

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and unusual punishment for leaking information about Plaintiff to

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other inmates.

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Court incorrectly stated that the claim against Defendant Acosta was

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an Eighth Amendment excessive force claim.

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Plaintiff is correct.

Specifically, in

In the conclusion section of the Order, however, the

Accordingly, Plaintiff’s motion to

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reinstate Defendant Acosta is GRANTED.

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1, 2013 Order dismissing Defendant Acosta from the action.

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Plaintiff’s Eighth Amendment claim against Defendant Acosta for

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cruel and unusual punishment will proceed.2

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The Court VACATES its August

III

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Defendants Evans, Royal, Lewis, Milton, Diggle, and Wood

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The conclusion section of the Order also omitted the fact that
the cruel and unusual punishment claim was cognizable against
Defendant Castellaw in addition to Defendant Acosta.
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have filed a motion to dismiss Plaintiff’s FAC based on failure to

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exhaust administrative remedies and failure to file within the

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statute of limitations.

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have filed a separate motion to dismiss Plaintiff’s FAC based on

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improper joinder of unrelated claims against different defendants.

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Defendants Anthony, Castellaw, and Tupman

As discussed above, the Court has granted Plaintiff leave

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to file a second amended complaint.

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operative pleading herein.

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dismiss are DENIED without prejudice to filing a renewed motion or

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Therefore, the SAC is now the

Accordingly, defendants’ motions to

motions addressing the claims in the SAC.

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In light of the Ninth Circuit’s recent opinion in Albino

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v. Baca, No. 10-55702, slip op. 1, 4 (9th Cir. Apr. 3, 2014) (en

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banc), the parties are advised that “an unenumerated motion under

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Rule 12(b) is not the appropriate procedural device for pretrial

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determination of whether administrative remedies have been

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exhausted.”

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Plaintiff’s purported failure to exhaust administrative remedies,

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they must do so by way of a motion for summary judgment.

If Defendants seek to renew their arguments regarding

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IV

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See id.

For the foregoing reasons, the Court hereby orders as
follows:

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1.

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complaint are GRANTED.

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Plaintiff’s SAC.

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Dr. Thomas J. Martinelli as a defendant on the docket in this

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action.

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2.

Plaintiff’s motions for leave to file a second amended
Docket. Nos. 83, 89.

(Dkt. 89-1.)

The Clerk shall file

The Clerk is further directed to add

Plaintiff’s motion to reinstate Defendant Sgt. Acosta
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is GRANTED.

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dismissing Defendant Acosta is VACATED.

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Docket No. 81.

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prejudice.

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Defendants’ motions to dismiss are DENIED without

Docket Nos.
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The Court’s August 1, 2013 Order

44, 87.

Defendant Martinelli has not been served.

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Accordingly, the Clerk shall issue summons and the United States

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Marshal shall serve, without prepayment of fees, a copy of the SAC

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in this matter, a copy of the Court’s May 16, 2013 Service Order,

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and a copy of this Order on Dr. Thomas J. Martinelli at Sutter Coast

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Hospital in Crescent City, California.

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5.

The Court also notes that Defendants Dr. Malo-Clines

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and Dr. Crinklaw remain unserved.

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Litigation Coordinator provided forwarding addresses for these two

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Defendants.

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summons and the United States Marshal shall serve, without

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prepayment of fees, a copy of the SAC in this matter, a copy of the

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Court’s May 16, 2013 Service Order, and a copy of this Order upon

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said Defendants at:

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(See Dkt. 41.)

On September 6, 2013, the PBSP

Accordingly, the Clerk shall re-issue

Dr. Malo-Clines
PO Box 7289
516 Redwood Street
Brookings, OR 97415
Dr. Crinklaw
1485 W. Frontier Street
Apache Junction, AZ 85220

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Counsel for Defendants is directed to inform the Court no

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later than thirty (30) days from the date of this order whether she

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will also represent Defendants Martinelli, Malo-Clines, and

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Crinklaw.

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6.

In order to expedite the resolution of this case, the

Court orders as follows:

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a.

No later than sixty-three (63) days from the

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date this order is filed, Defendants must file and serve a motion

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for summary judgment or other dispositive motion.

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summary judgment also must be accompanied by a Rand notice so that

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Plaintiff will have fair, timely, and adequate notice of what is

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required of him in order to oppose the motion.

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F.3d 934, 939 (9th Cir. 2012) (notice requirement set out in Rand v.

A motion for

Woods v. Carey, 684

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Rowland, 154 F.3d 952 (9th Cir. 1998), must be served concurrently

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with motion for summary judgment).

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argument that Plaintiff failed to exhaust administrative remedies,

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Defendants should also incorporate a modified Wyatt notice in light

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of Albino.

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Cir. 2003); Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012).

If Defendants renew their

See Wyatt v. Terhune, 315 F.3d 1108, 1120, n.14 (9th

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b.

Plaintiff’s opposition to the summary judgment

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or other dispositive motion must be filed with the Court and served

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upon Defendants no later than thirty-five (35) days from the date

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the motion is filed.

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c.

Defendants shall file a reply brief no later

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than fourteen (14) days after the date the opposition is filed.

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motion shall be deemed submitted as of the date the reply brief is

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due.

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The

No hearing will be held on the motion.
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Any motion for an extension of time must be filed no

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later than the deadline sought to be extended and must be

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accompanied by a showing of good cause.

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8.

Pursuant to the Court’s Orders of April 24, 2013 and
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May 16, 2013, the Clerk shall terminate the following Defendants

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from this action: Carson, Huges, M. Davis, Arcuri, Rush, P. Butter,

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Gonzales, F. Andrade, D. Davis, D. Forkner, D. McDonald, C.

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Rippetoe, A. Schavone, J. Whitlaw, G. Pope, J. Clemons, V. Ryan, F.

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Flowers, C. Ducart, Turner, J. Barneburs, D. James, K. Osborne,

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Pepiot, K, Cruse, Feimer, and Hilton.

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9.

Finally, the Clerk is directed to correct the spelling

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of the name of Defendant Tupman on the docket by substituting

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“Tupman” for “Tubman.”

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This Order terminates docket numbers 44, 81, 83, 87, and
89.

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IT IS SO ORDERED.
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DATED

05/13/2014
THELTON E. HENDERSON
United States District Judge

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