Wilkes v. Hunter et al

Filing 14

ORDER OF SERVICE re 11 Amended Complaint filed by David Gaston Wilkes. Signed by Judge James Donato on 1/17/17. (lrcS, COURT STAFF) (Filed on 1/17/2017) Modified on 1/17/2017 (lrcS, COURT STAFF).

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

DAVID GASTON WILKES,
Plaintiff,

8
9
10

ORDER OF SERVICE

v.
HUNTER, et al.,
Defendants.

11
United States District Court
Northern District of California

Case No. 16-cv-02401-JD

12
13

Plaintiff, a former detainee, has filed a pro se civil rights complaint under 42 U.S.C. §

14

1983. The original complaint was dismissed with leave to amend and plaintiff has filed an

15

amended complaint.
DISCUSSION

16
17

STANDARD OF REVIEW

18

Federal courts must engage in a preliminary screening of cases in which prisoners seek

19

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

20

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

21

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

22

monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

23

pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

24

Cir. 1990).

25

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

26

claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed

27

factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

28

relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

1

cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above

2

the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

3

omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

4

face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

5

standard of Twombly: “While legal conclusions can provide the framework of a complaint, they

6

must be supported by factual allegations. When there are well-pleaded factual allegations, a court

7

should assume their veracity and then determine whether they plausibly give rise to an entitlement

8

to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by

9

the Constitution or laws of the United States was violated, and (2) the alleged deprivation was

11
United States District Court
Northern District of California

10

committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

12

LEGAL CLAIMS

13

Plaintiff alleges that San Francisco Sheriff’s Department Deputies failed to transfer him to

14

an outside mental health treatment program. Deliberate indifference to serious medical needs

15

violates the Eighth Amendment’s proscription against cruel and unusual punishment.1 Estelle v.

16

Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992),

17

overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.

18

1997) (en banc). A determination of “deliberate indifference” involves an examination of two

19

elements: the seriousness of the prisoner's medical need and the nature of the defendant's response

20

to that need. Id. at 1059.

21

A “serious” medical need exists if the failure to treat a prisoner’s condition could result in

22

further significant injury or the “unnecessary and wanton infliction of pain.” Id. The existence of

23
1

24
25
26
27
28

It is not clear if plaintiff was a pretrial detainee or a convicted prisoner. However, even though
pretrial detainees’ claims arise under the Due Process Clause, the Eighth Amendment serves as a
benchmark for evaluating those claims. See Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996)
(8th Amendment guarantees provide minimum standard of care for pretrial detainees). The Ninth
Circuit has determined that the appropriate standard for evaluating constitutional claims brought
by pretrial detainees is the same one used to evaluate convicted prisoners’ claims under the Eighth
Amendment. “The requirement of conduct that amounts to ‘deliberate indifference’ provides an
appropriate balance of the pretrial detainees’ right to not be punished with the deference given to
prison officials to manage the prisons.” Redman v. County of San Diego, 942 F.2d 1435, 1443
(9th Cir. 1991) (en banc) (citation omitted).
2

1

an injury that a reasonable doctor or patient would find important and worthy of comment or

2

treatment; the presence of a medical condition that significantly affects an individual's daily

3

activities; or the existence of chronic and substantial pain are examples of indications that a

4

prisoner has a “serious” need for medical treatment. Id. at 1059-60.
A prison official is deliberately indifferent if he or she knows that a prisoner faces a

6

substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate

7

it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only “be aware of

8

facts from which the inference could be drawn that a substantial risk of serious harm exists,” but

9

he “must also draw the inference.” Id. If a prison official should have been aware of the risk, but

10

was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.

11
United States District Court
Northern District of California

5

Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). “A difference of opinion

12

between a prisoner-patient and prison medical authorities regarding treatment does not give rise to

13

a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

14

“Within the prison context, a viable claim of First Amendment retaliation entails five basic

15

elements: (1) An assertion that a state actor took some adverse action against an inmate (2)

16

because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

17

exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

18

correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted).

19

Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (prisoner suing prison officials under §

20

1983 for retaliation must allege that he was retaliated against for exercising his constitutional

21

rights and that the retaliatory action did not advance legitimate penological goals, such as

22

preserving institutional order and discipline); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994)

23

(per curiam) (same).

24

Title II of the Americans with Disabilities Act (“ADA”) “prohibit[s] discrimination on the

25

basis of disability.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Title II provides

26

that “no qualified individual with a disability shall, by reason of such disability, be excluded from

27

participation in or be denied the benefits of the services, programs, or activities of a public entity,

28

or be subject to discrimination by such entity.” 42 U.S.C. § 12132. Title II of the ADA applies to
3

1

inmates within state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 213

2

(1998).

3

In order to state a claim that a public program or service violated Title II of the ADA, a

4

plaintiff must show: he is a “qualified individual with a disability”; he was either excluded from

5

participation in or denied the benefits of a public entity’s services, programs, or activities, or was

6

otherwise discriminated against by the public entity; and such exclusion, denial of benefits, or

7

discrimination was by reason of his disability. McGary v. City of Portland, 386 F.3d 1259, 1265

8

(9th Cir. 2004).

9

Plaintiff names as defendants, Captain Polsen and Lieutenant Hunter of the San Francisco
County Sheriff’s Department. He alleges violations of the Eighth Amendment, ADA and state

11
United States District Court
Northern District of California

10

law. Plaintiff states that he was in San Francisco County Jail when on April 12, 2016, a superior

12

court judge granted plaintiff’s motion to be transferred to a treatment program. Plaintiff suffers

13

from schizophrenia and substance abuse problems. He alleges that Captain Polsen refused to

14

transfer plaintiff and it was only ninety days later that he was finally transferred but the delay

15

caused him injuries. These allegations are sufficient to proceed against Polsen as a violation of the

16

Eighth Amendment and state law.

17

Plaintiff’s claim under the ADA fails to state a claim. He has failed to present any

18

plausible allegations that he was denied transfer to the treatment facility due to any disability. The

19

treatment or lack of medical treatment for plaintiff’s condition does not provide a basis upon

20

which to impose liability. Burger v. Bloomberg, 418 F.3d 882 (8th Cir. 2005) (medical treatment

21

decisions not basis for ADA claims); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th

22

Cir. 2005) (medical decisions not ordinarily within the scope of the ADA); Bryant v. Madigan, 84

23

F.3d 246, 249 (7th Cir. 1996) (“The ADA does not create a remedy for medical malpractice.”).

24

Nor has plaintiff presented a cognizable retaliation claim. He only states that he was

25

denied the transfer because of his complaints about the jail and because he was a whistle blower.

26

He has failed to present any plausible allegations that he was denied transferred due to some

27

protected conduct. His conclusory allegations do not plausibly demonstrate an entitlement to

28

relief. Iqbal, 556 U.S. at 679. In addition, plaintiff fails to identify any specific allegations
4

1

against defendant Hunter; therefore, this defendant is dismissed from this action.
CONCLUSION

2
3

1.

All claims and defendants are dismissed with prejudice except for the claim that

4

defendant Polsen interfered with plaintiff’s transfer in violation of the Eighth Amendment and

5

state law. The clerk shall issue a summons and the United States Marshal shall serve, without

6

prepayment of fees, copies of the amended complaint (Docket No. 12) with attachments and

7

copies of this order on the following defendant: San Francisco County Sheriff’s Captain Polsen at

8

San Francisco County Jail.

9
10

2.

In order to expedite the resolution of this case, the Court orders as follows:
a.

No later than sixty days from the date of service, defendant shall file a

United States District Court
Northern District of California

11

motion for summary judgment or other dispositive motion. The motion shall be supported by

12

adequate factual documentation and shall conform in all respects to Federal Rule of Civil

13

Procedure 56, and shall include as exhibits all records and incident reports stemming from the

14

events at issue. If defendant is of the opinion that this case cannot be resolved by summary

15

judgment, he shall so inform the Court prior to the date his summary judgment motion is due. All

16

papers filed with the Court shall be promptly served on the plaintiff.

17

b.

At the time the dispositive motion is served, defendant shall also serve, on a

18

separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 952, 953-

19

954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003).

20

See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand and Wyatt notices must be

21

given at the time motion for summary judgment or motion to dismiss for nonexhaustion is filed,

22

not earlier); Rand at 960 (separate paper requirement).

23

c.

Plaintiff’s opposition to the dispositive motion, if any, shall be filed with

24

the Court and served upon defendant no later than thirty days from the date the motion was served

25

upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is

26

provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc),

27

and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

28
5

1

If defendant files a motion for summary judgment claiming that plaintiff failed to exhaust

2

his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should take

3

note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),” which is provided

4

to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003).
d.

5
6

days after the opposition is served upon him.
e.

7
8
9

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.
3.

All communications by plaintiff with the Court must be served on defendant, or

defendant’s counsel once counsel has been designated, by mailing a true copy of the document to

11
United States District Court
Northern District of California

10

defendants or defendants’ counsel.

12

4.

Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

13

No further Court order under Federal Rule of Civil Procedure 30(a)(2) is required before the

14

parties may conduct discovery.

15

5.

It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

16

informed of any change of address by filing a separate paper with the clerk headed “Notice of

17

Change of Address.” He also must comply with the Court’s orders in a timely fashion. Failure to

18

do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

19

Civil Procedure 41(b).

20
21

IT IS SO ORDERED.
Dated: January 17, 2017

22
23
JAMES DONATO
United States District Judge

24
25
26
27
28
6

1
2

NOTICE -- WARNING (SUMMARY JUDGMENT)
If defendants move for summary judgment, they are seeking to have your case dismissed.

3

A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if

4

granted, end your case.

5

Rule 56 tells you what you must do in order to oppose a motion for summary judgment.

6

Generally, summary judgment must be granted when there is no genuine issue of material fact--

7

that is, if there is no real dispute about any fact that would affect the result of your case, the party

8

who asked for summary judgment is entitled to judgment as a matter of law, which will end your

9

case. When a party you are suing makes a motion for summary judgment that is properly
supported by declarations (or other sworn testimony), you cannot simply rely on what your

11
United States District Court
Northern District of California

10

complaint says. Instead, you must set out specific facts in declarations, depositions, answers to

12

interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts

13

shown in the defendant’s declarations and documents and show that there is a genuine issue of

14

material fact for trial. If you do not submit your own evidence in opposition, summary judgment,

15

if appropriate, may be entered against you. If summary judgment is granted, your case will be

16

dismissed and there will be no trial.

17
18
19
20

NOTICE -- WARNING (EXHAUSTION)
If defendants file a motion for summary judgment for failure to exhaust, they are seeking
to have your case dismissed. If the motion is granted it will end your case.
You have the right to present any evidence you may have which tends to show that you did

21

exhaust your administrative remedies. Such evidence may be in the form of declarations

22

(statements signed under penalty of perjury) or authenticated documents, that is, documents

23

accompanied by a declaration showing where they came from and why they are authentic, or other

24

sworn papers, such as answers to interrogatories or depositions.

25
26

If defendants file a motion for summary judgment for failure to exhaust and it is granted,
your case will be dismissed and there will be no trial.

27
28
7

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
4

DAVID GASTON WILKES,

Case No. 16-cv-02401-JD

Plaintiff,
5
v.

CERTIFICATE OF SERVICE

6
7

HUNTER, 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 January 17, 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

David Gaston Wilkes
9670 Empire Road
Oakland, CA 94603

19
20

Dated: January 17, 2017

21
22
23

Susan Y. Soong
Clerk, United States District Court

24
25
26

By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

27
28
8