Smith v. Tootell, M.D. et al

Filing 4

ORDER OF SERVICE. Dispositive Motion due by 7/5/2017. Signed by Judge Jon S. Tigar on April 3, 2017. (Attachments: # 1 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 4/4/2017)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 CAREY K. SMITH, 6 Plaintiff, 7 Case No. 17-cv-00470-JST (PR) ORDER OF SERVICE v. 8 ELENA TOOTELL, M.D., et al., 9 Defendants. 10 United States District Court Northern District of California 11 12 Plaintiff, an inmate at San Quentin State Prison (“SQSP”), filed this pro se civil rights 13 action under 42 U.S.C. § 1983 alleging that she has been denied necessary transgender health 14 care.1 This case is now before the Court for initial review of the pleadings pursuant to 28 U.S.C. 15 § 1915A. Plaintiff is granted leave to proceed in forma pauperis by separate order. DISCUSSION 16 17 A. 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). The court must identify cognizable claims or dismiss the complaint, or any portion of 21 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 22 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 23 § 1915A(b). Pro se pleadings must be liberally construed, however. Balistreri v. Pacifica Police 24 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 25 26 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 27 28 1 Because plaintiff identifies as transgender, the Court uses female pronouns. 1 statement need only “‘give the defendant fair notice of what the . . . claim is and the grounds upon 2 which it rests.’” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although 3 in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s 4 obligation to provide the grounds of his ‘entitle[ment] to relief’ requires more than labels and 5 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 6 Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 7 Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint 8 must proffer “enough facts to state a claim for relief that is plausible on its face.” Id. at 1974. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 9 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 11 United States District Court Northern District of California 10 the alleged violation was committed by a person acting under the color of state law. West v. 12 Atkins, 487 U.S. 42, 48 (1988). 13 B. Legal Claims 14 Deliberate indifference to serious medical needs violates the Eighth Amendment’s 15 proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). 16 A “serious medical need” exists if the failure to treat a prisoner’s condition could result in further 17 significant injury or the “unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 18 F.2d 1050, 1059 (9th Cir. 1992) (citing Estelle, 429 U.S. at 104), overruled in part on other 19 grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A 20 prison official is “deliberately indifferent” if he knows that a prisoner faces a substantial risk of 21 serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v. 22 Brennan, 511 U.S. 825, 837 (1994). 23 Neither negligence nor gross negligence warrant liability under the Eighth Amendment. 24 Id. at 835-36 & n4. An “official’s failure to alleviate a significant risk that he should have 25 perceived but did not, . . . cannot under our cases be condemned as the infliction of punishment.” 26 Id. at 838. Instead, “the official’s conduct must have been ‘wanton,’ which turns not upon its 27 effect on the prisoner, but rather, upon the constraints facing the official.” Frost v. Agnos, 152 28 F.3d 1124, 1128 (9th Cir. 1998) (citing Wilson v. Seiter, 501 U.S. 294, 302-03 (1991)). Prison 2 1 officials violate their constitutional obligation only by “intentionally denying or delaying access to 2 medical care.” Estelle, 429 U.S. at 104-05. 3 According to the complaint, plaintiff is a transgender inmate. In or around November 4 2015, plaintiff’s primary care physician, defendant Dr. Denise Reyes began accessing plaintiff’s 5 mental health records and using the records to deny plaintiff transgender health care, including 6 medication recommended by a specialist. Dr. Reyes removed mental health records from 7 plaintiff’s file and replaced them with false progress notes, including notes labeling plaintiff as a 8 “drug seeker” and “sexual deviant who is [at] high risk for HIV.” In August 2016, defendant 9 SQSP chief medical officer Dr. Tootell joined plaintiff’s mental health treatment team. Plaintiff informed Dr. Tootell of Dr. Reyes’ conduct, and Dr. Tootell refused to intervene. These 11 United States District Court Northern District of California 10 allegations, liberally construed, state a claim of deliberate indifference as against Dr. Reyes and 12 Dr. Tootell. See Kosilek v. Spencer, 774 F.3d 63, 86 (1st Cir. 2014) (en banc) (untreated 13 symptoms of gender dysphoria can constitute a serious medical need). CONCLUSION 14 15 For the foregoing reasons, 16 1. 17 18 Plaintiff’s complaint states a cognizable Eighth Amendment claim for deliberate indifference to serious medical needs as against Dr. Reyes and Dr. Tootell. 2. The Clerk shall issue summons and the United States Marshal shall serve, without 19 prepayment of fees, a copy of the complaint and a copy of this order upon the following 20 defendants at San Quentin State Prison: Dr. Denise Reyes and Dr. Elena Tootell. 21 22 23 24 The Clerk shall also mail a courtesy copy of the complaint and this order to the California Attorney General’s Office. 3. In order to expedite the resolution of this case, the Court orders as follows: a. No later than 91 days from the date this order is filed, defendants must file 25 and serve a motion for summary judgment or other dispositive motion. A motion for summary 26 judgment also must be accompanied by a Rand notice so that plaintiff will have fair, timely and 27 adequate notice of what is required of him in order to oppose the motion. Woods v. Carey, 684 28 F.3d 934, 939 (9th Cir. 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th 3 1 Cir. 1998), must be served concurrently with motion for summary judgment).2 If defendants are of the opinion that this case cannot be resolved by summary judgment, 2 3 defendants must so inform the Court prior to the date the motion is due. b. 4 Plaintiff’s opposition to the summary judgment or other dispositive motion 5 must be filed with the Court and served upon defendants no later than 28 days from the date the 6 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 7 provided later in this order as he prepares his opposition to any motion for summary judgment. c. 8 9 10 opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion. 4. 11 United States District Court Northern District of California Defendants shall file a reply brief no later than 14 days after the date the Plaintiff is advised that a motion for summary judgment under Rule 56 of the 12 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 13 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 14 granted when there is no genuine issue of material fact – that is, if there is no real dispute about 15 any fact that would affect the result of your case, the party who asked for summary judgment is 16 entitled to judgment as a matter of law, which will end your case. When a party you are suing 17 makes a motion for summary judgment that is properly supported by declarations (or other sworn 18 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 19 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 20 as provided in Rule 56(e), that contradict the facts shown in the defendants’ declarations and 21 documents and show that there is a genuine issue of material fact for trial. If you do not submit 22 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 23 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. 24 2 25 26 27 28 If defendants assert that plaintiff failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), defendants must raise such argument in a motion for summary judgment, pursuant to the Ninth Circuit’s opinion in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that failure to exhaust available administrative remedies under the Prison Litigation Reform Act, should be raised by a defendant as an unenumerated Rule 12(b) motion). Such a motion should also incorporate a modified Wyatt notice in light of Albino. See Wyatt v. Terhune, 315 F.3d 1108, 1120, n.14 (9th Cir. 2003); Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012). 4 1 2 3 4 Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does not excuse defendants’ obligation to serve said notice again concurrently with a motion for summary judgment. Woods, 684 F.3d at 939). 5. All communications by plaintiff with the Court must be served on defendants’ 5 counsel by mailing a true copy of the document to defendants’ counsel. The Court may disregard 6 any document which a party files but fails to send a copy of to his opponents. Until defendants’ 7 counsel has been designated, plaintiff may mail a true copy of the document directly to 8 defendants, but once defendants are represented by counsel, all documents must be mailed to 9 counsel rather than directly to defendants. 10 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. United States District Court Northern District of California 11 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 12 before the parties may conduct discovery. 13 7. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 14 Court informed of any change of address and must comply with the Court’s orders in a timely 15 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 16 to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 17 pending case every time he is moved to a new facility. 18 19 20 21 22 23 8. Any motion for an extension of time must be filed no later than the deadline sought to be extended and must be accompanied by a showing of good cause. 9. Plaintiff is cautioned that he must include the case name and case number for this case on any document he submits to the Court for consideration in this case. IT IS SO ORDERED. Dated: April 3, 2017 24 25 JON S. TIGAR United States District Judge 26 27 28 5

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