Green v. Brown et al

Filing 3

ORDER CONSOLIDATING CASES; ORDER OF PARTIAL DISMISSAL AND OF SERVICE; INSTRUCTIONS TO CLERK. Signed by Judge William Alsup on 2/7/2018. (Attachments: # 1 Certificate/Proof of Service)(afmS, COURT STAFF) (Filed on 2/7/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL GREEN,

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Plaintiff,

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No. C 18-0648 WHA (PR)
No. C 18-0649 WHA (PR)

v.
EDMUND G. BROWN, JR.;
CALIFORNIA CORRECTIONAL
HEALTH CARE SERVICES; DR. K.
KUMAR; G. ELLIS; DEPUTY
DIRECTOR J. LEWIS; NURSE R.
ERGUIZA; DR. D. BRIGHT; B.
OMOSAIYE; DR. LAW SAN FU;
DR. PANONG

ORDER CONSOLIDATING CASES;
ORDER OF PARTIAL DISMISSAL
AND OF SERVICE; INSTRUCTIONS
TO CLERK

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Defendants.
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INTRODUCTION

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Plaintiff, a California prisoner proceeding pro se, filed two complaints under 42 U.S.C.

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1983 on the same day about inadequate medical care at Salinas Valley State Prison (“SVSP).

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In Case No. 18-0648 WHA he complains about inadequate treatment for erectile dysfunction,

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and in Case No. 18-0649 WHA he complains about inadequate treatment for his chronic pain.

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Plaintiff names the same individuals as defendants in both cases. He is granted leave to proceed

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in forma pauperis in a separate order. For the reasons discussed below, the two cases are

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consolidated, claims against certain defendants are dismissed, and the complaints are ordered

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served upon defendants.

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ANALYSIS
A.

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

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

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

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

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

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se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699

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(9th Cir. 1990).

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

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claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the

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statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds

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upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted).

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Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a

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plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than

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labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

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do. . . . Factual allegations must be enough to raise a right to relief above the speculative

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level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A

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complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id.

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at 1974.

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To state a claim under 42 U.S.C. 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2)

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that the alleged deprivation was committed by a person acting under the color of state law.

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West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

LEGAL CLAIMS

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Plaintiff’s allegations, when liberally construed, state a cognizable claim for relief against

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defendants Dr. Law San Fu, Chief Medical Executive Dr. K. Kumar, Chief Executive Officer B.

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Omosaiye, Dr. D. Bright, Chief Executive Officer G. Ellis, Dr. Panong, and Nurse Erguiza under

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Section 1983 for deliberate indifference to plaintiff’s serious medical needs, in violation of his

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rights under the Eighth Amendment.

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Plaintiff has not stated a cognizable claim for relief against defendants Governor Edmund

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J. Brown, Deputy Director J. Lewis, or the California Correctional Health Care Services because

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he has not alleged actions or omissions by them that caused the alleged inadequacies in his

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medical care. See Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726 F.3d 1062, 1085

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(9th Cir. 2013) (liability may be imposed under Section 1983 only if plaintiff can show hat the

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defendant’s actions both actually and proximately caused the deprivation of a federally protected

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right). To the extent he names them because they are the superiors or employers of the other

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individual defendants, liability may not be imposed on that basis. See Board of Cty. Comm'rs. of

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Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997) (defendants may not be held vicariously liable

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for the unconstitutional acts of its employees under the theory of respondeat superior).

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Accordingly, the claims against these defendants will be dismissed.

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CONCLUSION

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For the reasons set out above, it is hereby ordered as follows:

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1. The claims against Governor Edmund J. Brown, Deputy Director J. Lewis, and the

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California Correctional Health Care Services are DISMISSED .
2. The clerk shall issue summons and the United States Marshal shall serve, without

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prepayment of fees, a copy of the complaint (consisting of the complaint in both Case Nos. C 18-

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0648 WHA and 16-0649 WHA) with all attachments thereto, and a copy of this order upon Dr.

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Law San Fu, Chief Medical Executive Dr. K. Kumar, Chief Executive Officer B.

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Omosaiye, Dr. D. Bright, Chief Executive Officer G. Ellis, Dr. Panong, and Nurse Erguiza

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at Salinas Valley State Prison. A courtesy copy of the complaint with attachments and this

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order shall also be mailed to the California Attorney General’s Office.

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3. Defendants shall file an answer in accordance with the Federal Rules of Civil
Procedure.
4. In order to expedite the resolution of this case:

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a. No later than 91 days from the date this order is filed, defendant shall file a

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motion for summary judgment or other dispositive motion. If defendant is of the opinion that

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this case cannot be resolved by summary judgment, he shall so inform the court prior to the date

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the summary judgment motion is due. All papers filed with the court shall be promptly served on

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the plaintiff.

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b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the

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court and served upon defendant no later than 28 days from the date of service of the motion.

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Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to

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

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

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c. Defendant shall file a reply brief no later than 14 days after the date of service
of the opposition.

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d. 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.

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e. Along with his motion, defendant shall proof that they served plaintiff the

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Rand warning at the same time they served him with their motion. Failure to do so will result

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in the summary dismissal of their motion.

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5. All communications by the plaintiff with the court must be served on defendant, or

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

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defendant or defendant’s counsel.

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6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No

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further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is

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required before the parties may conduct discovery.

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7. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court

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informed of any change of address and must comply with the court's orders in a timely fashion.

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

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Federal Rule of Civil Procedure 41(b).

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//

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//

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8. Case Nos. C 18-0648 WHA and C 18-0649 WHA are CONSOLIDATED . The

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complaint in Case No. 18-0649 WHA is deemed part of the complaint in Case No. C 18-0648.

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The clerk shall file a copy of this order in both cases, administratively close Case No. C 18-0649

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WHA, and terminate any pending motions in that case.

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IT IS SO ORDERED.

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Dated: February 7, 2018.
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W ILLIAM A LSUP
U NITED S TATES D ISTRICT J UDGE

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

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dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil

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Procedure will, if granted, end your case.

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

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

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

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the party who asked for summary judgment is entitled to judgment as a matter of law, which

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will end your case. When a party you are suing makes a motion for summary judgment that is

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properly supported by declarations (or other sworn testimony), you cannot simply rely on what

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

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answers to interrogatories, or authenticated documents, as provided in [current Rule 56(c)], that

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contradict the facts shown in the defendant's declarations and documents and show that there is

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a genuine issue of material fact for trial. If you do not submit your own evidence in opposition,

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

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your case will be dismissed and there will be no trial.

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