Bibbs v. Sayre et al

Filing 11

ORDER by Judge Claudia Wilken GRANTING DEFENDANTS' 9 MOTION TO SCREEN COMPLAINT; BRIEFING SCHEDULE ON COGNIZABLE CLAIMS AND DIRECTING PARTIES TO FILE CONSENT OR DECLINATION TO MAGISTRATE JUDGE JURISDICTION. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 9/24/2013) Modified on 9/24/2013 (cpS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Case No.: C 13-1570 CW (PR)

MARTIN J. BIBBS,
Plaintiff,

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v.
MICHAEL C. SAYRE, M.D., NANCY
W. ADAM, M.D., and TERRY ROGDE,

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ORDER GRANTING DEFENDANTS'
MOTION TO SCREEN COMPLAINT;
BRIEFING SCHEDULE ON COGNIZABLE
CLAIMS AND DIRECTING PARTIES TO
FILE CONSENT OR DECLINATION TO
MAGISTRATE JUDGE JURISDICTION

Defendants.

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United States District Court
For the Northern District of California

Doc. No. 9
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INTRODUCTION

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Plaintiff, a state prisoner incarcerated at Pelican Bay State

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Prison (PBSP), has filed a pro se civil rights action pursuant to
42 U.S.C. § 1983, alleging the violation of his constitutional
rights by prison officials and medical staff at PBSP.

He has paid

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the filing fee and has served Defendants.
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Defendants move to

screen the complaint pursuant to 28 U.S.C. § 1915A and to stay
proceedings until the complaint has been screened.

Plaintiff does

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not object to the complaint being screened but opposes a stay of

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proceedings.

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screen the complaint.

For good cause shown, the Court grants the motion to

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DISCUSSION
I.

Standard of Review
A federal court must conduct a preliminary screening in any

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case in which a prisoner seeks redress from a governmental entity

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or officer or employee of a governmental entity.

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28 U.S.C.

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§ 1915A(a).

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claims and dismiss any claims that are frivolous, malicious, fail

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to state a claim upon which relief may be granted or seek monetary

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relief from a defendant who is immune from such relief.

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§ 1915A(b)(1), (2).

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

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1988).

United States District Court
For the Northern District of California

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Id.

Pro se pleadings must be liberally construed.

To state a claim under 42 U.S.C. § 1983, a plaintiff must

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In its review, the court must identify any cognizable

allege two essential elements: (1) that a right secured by the
Constitution or laws of the United States was violated, and
(2) that the alleged violation was committed by a person acting
under the color of state law.

West v. Atkins, 487 U.S. 42, 48

(1988).
II.

Plaintiff’s Allegations
Plaintiff alleges that, when he arrived at PBSP on January

20, 2009, Defendants Dr. Sayre and Dr. Adam failed to review and
evaluate his health care transfer information which documented his
need for a prosthetic lift for his right shoe and chronic pain
management for neuropathy in his feet.

On January 26, 2009, Dr.

Adam changed the cause of Plaintiff's needs for a prosthetic to a
bunion, which only required a shoe insole.
untruths in support of her diagnosis.

Dr. Adam stated

Plaintiff's misdiagnosis by

Dr. Adam caused Plaintiff to walk in constant pain with numerous
ambulation problems.
On February 20, 2009, Dr. Sayre refused to process
Plaintiff's medical accommodation request for prosthetic
orthopedic shoes.

Dr. Sayre did this without reviewing

Plaintiff's medical records or medical transfer information, which

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thoroughly document Plaintiff's ongoing problem with his feet.

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Dr. Sayre also failed to conduct any diagnostic studies of

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Plaintiff's back, spine, legs or feet.

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On October 31, 2012, Dr. Sayre abruptly discontinued all of

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Plaintiff's chronic pain management care without regard to his

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back, spine, legs and feet problems.

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pain management in retaliation for Plaintiff's filing numerous

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complaints against him and other PBSP medical staff.

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Dr. Sayre discontinued this

On February 25, 2009, Terry Rogde misrepresented Plaintiff's

United States District Court
For the Northern District of California

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medical record which further led to the misdiagnosis of

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Plaintiff's serious medical needs.

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Plaintiff's allegations regarding Dr. Sayre's discontinuance

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of his pain management care on October 31, 2012 in retaliation for

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Plaintiff's filing lawsuits against him and other medical staff

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are duplicative of the allegations and claims in an earlier case

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filed by Plaintiff, Bibbs v. Sayre, et al., C 12-5917 CW (PR).

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Therefore, the claims based upon these allegations are dismissed

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with prejudice as duplicative.

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Plaintiff's allegations regarding the failure of Dr. Sayre

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and Dr. Adam properly to treat problems with his feet, when

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liberally construed, state a cognizable Eighth Amendment claim for

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deliberate indifference to serious medical needs.

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

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1059 (9th Cir. 1992).

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See Estelle v.

Plaintiff's allegations against Mr. Rogde fail to state a

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claim.

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in Plaintiff's medical record and how it led to the misdiagnosis

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of his serious medical needs.

Plaintiff does not specify what Mr. Rogde misrepresented

The claim against Mr. Rogde is
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belied by Plaintiff's allegations that his medical records were

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replete with information documenting his serious medical needs and

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that Drs. Sayre and Adams were deliberately indifferent, in part,

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because they ignored the information in his medical records.

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Furthermore, Plaintiff does not indicate Mr. Rogde's state of mind

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that would indicate deliberate indifference.

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Brennan, 511 U.S. 825, 837 (1994) (prison official is deliberately

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indifferent if he knows that a prisoner faces a substantial risk

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of serious harm and disregards that risk by failing to take

See Farmer v.

United States District Court
For the Northern District of California

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reasonable steps to abate it); McGuckin, 974 F.2d at 1060 (in

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order for deliberate indifference to be established, there must be

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a purposeful act or failure to act on the part of the defendant

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and resulting harm).

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allegations to correct this deficiency, if he truthfully can do

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so.

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III. Consent or Declination to Proceed Before Magistrate Judge

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Plaintiff is granted leave to amend to add

In order to encourage the just, speedy and inexpensive

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determination of 42 U.S.C. § 1983 cases filed in this district,

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the parties may waive their right to proceed before a district

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judge and consent to proceed before a magistrate judge for all
purposes.

Attached to this Order is a Notice of Option to Consent

to Proceed Before United States Magistrate Judge and an Order
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requiring the parties to notify the Court whether they consent or
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decline to so proceeding.

The parties shall complete the

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requisite consent or declination form and return it to the Court

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as set forth in paragraph 5 of the Conclusion of this Order.

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1. Defendants' motion to screen the complaint is GRANTED.

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Doc. no. 9.
2.

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Plaintiff states a cognizable claim for deliberate

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indifference to his serious medical needs against Drs. Sayre and

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Adam based upon their 2009 alleged conduct.
3.

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United States District Court
For the Northern District of California

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Plaintiff's claims against Dr. Sayre based upon his

alleged conduct that occurred in 2012 are dismissed as duplicative
of the allegations and claims Plaintiff alleged in an earlier
case.
4.

Plaintiff's claim against Mr. Rogde is dismissed for

failure to state a cognizable claim of deliberate indifference to
serious medical needs.

Within thirty (30) days from the date of

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this Order, Plaintiff may file an amended complaint to cure the
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deficiencies noted above.
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Plaintiff shall use the Court's civil rights complaint form,
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a copy of which is provided herewith, and include in the caption
both the case number of this action, No. C 13-01570 CW (PR), and
the heading "AMENDED COMPLAINT."
If Plaintiff fails timely to file an amended complaint in

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conformity with this Order, the claim against Mr. Rogde will be

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dismissed without prejudice and the cognizable claims against Drs.

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Sayre and Adam will proceed.

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5.

No later than thirty days from the date of this Order,

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all parties shall file their consent or declination to proceed

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before a United States Magistrate Judge.

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6.

Within twenty-one days from the date of this Order

Defendants Dr. Sayre and Dr. Adam shall file an answer to the
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complaint.

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dispositive motions in this action:

The following briefing schedule shall govern

a.

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No later than thirty days from the date their

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answer is due, Defendants shall file a motion for summary judgment

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or other dispositive motion.

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summary judgment, it shall be supported by adequate factual

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documentation and shall conform in all respects to Federal Rule of

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Civil Procedure 56.

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United States District Court
For the Northern District of California

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If Defendants file a motion for

If Defendants are of the opinion that this

case cannot be resolved by summary judgment, they shall so inform
the Court prior to the date the summary judgment motion is due.
All papers filed with the Court shall be promptly served on
Plaintiff.
At the time of filing the motion for summary judgment or

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other dispositive motion, Defendants shall comply with the Ninth
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Circuit’s decisions in Woods v. Carey, 684 F.3d 934 (9th Cir.
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2012), and Stratton v. Buck, 697 F.3d 1004 (9th Cir. 2012), and
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provide Plaintiff with notice of what is required of him to oppose
a summary judgment motion or a motion to dismiss for failure to
exhaust administrative remedies.
b.

Plaintiff’s opposition to the motion for summary

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judgment or other dispositive motion shall be filed with the Court

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and served on Defendants no later than twenty-eight days after the

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date on which Defendants’ motion is filed.

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Before filing his opposition, Plaintiff is advised to read

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the notice that will be provided to him by Defendants when the

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motion is filed, and Rule 56 of the Federal Rules of Civil

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Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party

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opposing summary judgment must come forward with evidence showing

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triable issues of material fact on every essential element of his
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claim).

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of proving his allegations in this case, he must be prepared to

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produce evidence in support of those allegations when he files his

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opposition to Defendants’ summary judgment motion.

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may include sworn declarations from himself and other witnesses to

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the incident, and copies of documents authenticated by sworn

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declaration.

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simply by repeating the allegations of his complaint.
c.

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United States District Court
For the Northern District of California

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Such evidence

Plaintiff will not be able to avoid summary judgment

Defendants shall file a reply brief no later than

fourteen days after the date Plaintiff’s opposition is filed.
d.

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Plaintiff is cautioned that because he bears the burden

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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7.

Discovery may be taken in this action in accordance with

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the Federal Rules of Civil Procedure.

Leave of the Court pursuant

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to Rule 30(a)(2) is hereby granted to Defendants to depose
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Plaintiff and any other necessary witnesses confined in prison.

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8.

All communications by Plaintiff with the Court must be

served on Defendants, or Defendants’ counsel once counsel has been

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designated, by mailing a true copy of the document to Defendants

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or Defendants’ counsel.

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9.

It is Plaintiff’s responsibility to prosecute this case.

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He must keep the Court informed of any change of address and must

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comply with the Court’s orders in a timely fashion.

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10.

Extensions of time are not favored, though reasonable

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extensions will be granted.

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must be filed no later than fourteen days prior to the deadline

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//

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//

Any motion for an extension of time

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sought to be extended.

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IT IS SO ORDERED.

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Dated: 9/24/2013
________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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United States District Court
For the Northern District of California

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