Kaufman v. Spearman et al

Filing 56

ORDER by Judge James Donato granting 45 Motion for Extension of Time to File; granting 47 Motion Screen Order; denying 48 Motion to Stay; denying 52 Motion for Default Judgment; denying 54 Motion to Appoint Counsel. (lrcS, COURT STAFF) (Filed on 2/24/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOEL DAVID KAUFMAN, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 15-cv-02777-JD ORDER ON MOTIONS v. Re: Dkt. Nos. 45, 47, 48, 52, 54 M. E. SPEARMAN, et al., Defendants. 12 13 Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42 U.S.C. § 14 1983. On January 7, 2016, the Court ordered service on defendants Dr. Branch, Dr. Bright and 15 Warden Spearman finding that plaintiff had presented a cognizable claim that defendants were 16 deliberately indifferent to his serious medical needs. Plaintiff stated that he was allergic to gluten, 17 soy, and dairy and defendants had ignored letters from outside doctors to this effect. As a result 18 he had required four Benadryl or cortisone injections after severe allergic reactions. He alleged 19 that defendants denied he has a food allergy which had resulted in plaintiff not receiving the 20 minimal nutritional calories and additional allergic reactions. 21 The defendants were served and the case was stayed and referred to the pro se prisoner 22 settlement program at the parties’ request. The case did not settle, but plaintiff filed a 23 supplemental complaint. The Court dismissed the supplemental complaint with leave to amend 24 and plaintiff filed an amended supplemental complaint. 25 STANDARD OF REVIEW 26 Federal courts must engage in a preliminary screening of cases in which prisoners seek 27 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 28 1 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 2 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 3 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 4 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 5 Cir. 1990). 6 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 7 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 8 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 9 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above 11 United States District Court Northern District of California 10 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 12 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 13 face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face” 14 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 15 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 16 should assume their veracity and then determine whether they plausibly give rise to an entitlement 17 to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 18 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by 19 the Constitution or laws of the United States was violated, and (2) the alleged deprivation was 20 committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 21 LEGAL CLAIMS 22 Plaintiff alleges that he has severe food intolerances that defendants have not properly 23 addressed. Deliberate indifference to serious medical needs violates the Eighth Amendment’s 24 proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 25 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, 26 WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A 27 determination of “deliberate indifference” involves an examination of two elements: the 28 seriousness of the prisoner’s medical need and the nature of the defendant’s response to that need. 2 1 2 See McGuckin, 974 F.2d at 1059. Adequate food is a basic human need protected by the Eighth Amendment. See Keenan v. 3 Hall, 83 F.3d 1083, 1091 (9th Cir. 1996), amended, 135 F.3d 1318 (9th Cir. 1998). The Eighth 4 Amendment right to food was clearly established as of at least 2001. Foster v. Runnels, 554 F.3d 5 807, 815 (9th Cir. 2009). Denial of food service presents a sufficiently serious condition to meet 6 the objective prong of the Eighth Amendment deliberate indifference analysis. See, e.g., id. at 812 7 (denial of 16 meals over 23 days was “a sufficiently serious deprivation because food is one of 8 life's basic necessities”); id. at 812 n.1 (denial of 2 meals over 9-week period was not sufficiently 9 serious to meet objective prong of Eighth Amendment deliberate indifference). The Eighth Amendment requires only that prisoners receive food that is adequate to maintain health; it need 11 United States District Court Northern District of California 10 not be pleasing, aesthetically, or otherwise. See Graves v. Arpaio, 623 F.3d 1043, 1050 (9th Cir. 12 2010) (per curiam) (Eighth Amendment requires that pretrial detainees be given food that meets or 13 exceeds the Department of Agriculture’s Dietary Guidelines). 14 The allegations in the amended supplemental complaint are substantially similar to the 15 allegations in the underlying complaint. Plaintiff also names the same defendants that have 16 already been served. Defendants argue that certain claims should be screened out because plaintiff 17 has annexed several exhibits including a doctor’s report that found plaintiff would receive no 18 benefit from a special diet. The case will continue against the same defendants with the same 19 claims previously found cognizable. While plaintiff has included additional exhibits, his 20 allegations are still sufficient to proceed at this stage of the litigation. 21 Plaintiff has also requested the appointment of counsel. The Ninth Circuit has held that a 22 district court may ask counsel to represent an indigent litigant only in “exceptional 23 circumstances,” the determination of which requires an evaluation of both (1) the likelihood of 24 success on the merits, and (2) the ability of the plaintiff to articulate his claims pro se in light of 25 the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 26 1991). Plaintiff does not proceed in forma pauperis and he has not made a showing that he is 27 indigent. Plaintiff has also presented his claims adequately, and the issues are not complex. The 28 motion to appoint counsel is denied. 3 CONCLUSION 1 2 3 4 5 6 7 8 9 1. Plaintiff’s motion for an extension of time (Docket No. 45) is GRANTED and the Court has reviewed the amended supplemental complaint. 2. Defendants’ motion to screen the amended supplemental complaint (Docket No. 47) is GRANTED. 3. Defendants’ motion to stay discovery pending screening (Docket No. 48) is DENIED because the complaint has been screened and continues. 4. Plaintiff’s motion for a default judgment (Docket No. 52) is DENIED because defendants have properly responded to the complaint. 5. Plaintiff’s motion to appoint counsel (Docket No. 54) is DENIED. 11 United States District Court Northern District of California 10 6. In order to expedite the resolution of this case, the Court orders as follows: 12 a. No later than sixty days from the date of service, defendant shall file a 13 motion for summary judgment or other dispositive motion. The motion shall be supported by 14 adequate factual documentation and shall conform in all respects to Federal Rule of Civil 15 Procedure 56, and shall include as exhibits all records and incident reports stemming from the 16 events at issue. If defendant is of the opinion that this case cannot be resolved by summary 17 judgment, he shall so inform the Court prior to the date his summary judgment motion is due. All 18 papers filed with the Court shall be promptly served on the plaintiff. 19 b. At the time the dispositive motion is served, defendant shall also serve, on a 20 separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 952, 953- 21 954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003). 22 See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand and Wyatt notices must be 23 given at the time motion for summary judgment or motion to dismiss for nonexhaustion is filed, 24 not earlier); Rand at 960 (separate paper requirement). 25 c. Plaintiff’s opposition to the dispositive motion, if any, shall be filed with 26 the Court and served upon defendant no later than thirty days from the date the motion was served 27 upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is 28 4 1 provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), 2 and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 3 If defendant files a motion for summary judgment claiming that plaintiff failed to exhaust 4 his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should take 5 note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),” which is provided 6 to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003). d. 7 8 days after the opposition is served upon him. e. 9 10 United States District Court Northern District of California 11 If defendant wishes to file a reply brief, he shall do so no later than fifteen The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion unless the Court so orders at a later date. 7. All communications by plaintiff with the Court must be served on defendant, or 12 defendant’s counsel once counsel has been designated, by mailing a true copy of the document to 13 defendants or defendants’ counsel. 14 8. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 15 No further Court order under Federal Rule of Civil Procedure 30(a)(2) is required before the 16 parties may conduct discovery. 17 9. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 18 informed of any change of address by filing a separate paper with the clerk headed “Notice of 19 Change of Address.” He also must comply with the Court’s orders in a timely fashion. Failure to 20 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 21 Civil Procedure 41(b). 22 23 IT IS SO ORDERED. Dated: February 24, 2017 24 25 JAMES DONATO United States District Judge 26 27 28 5 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 JOEL DAVID KAUFMAN, Case No. 15-cv-02777-JD Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 M. E. SPEARMAN, et al., Defendants. 8 9 10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. United States District Court Northern District of California 11 12 13 14 15 That on February 24, 2017, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 Joel David Kaufman AT3133 P.O. Box 705 Soledad, CA 93960 19 20 21 Dated: February 24, 2017 22 23 Susan Y. Soong Clerk, United States District Court 24 25 26 27 By:________________________ LISA R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 28 6

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