Hightower v. Birdsong et al

Filing 9

ORDER OF PARTIAL DISMISSAL AND SERVICE. Habeas Answer or Dispositive Motion due by 3/7/2016. Signed by Judge Yvonne Gonzalez Rogers on 1/6/16. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 1/6/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LARRY LEWIS HIGHTOWER, Case No. 15-cv-03966-YGR (PR) Plaintiff, 8 ORDER OF PARTIAL DISMISSAL AND SERVICE v. 9 10 DR. EDWARD BIRDSONG, Defendant. United States District Court Northern District of California 11 Plaintiff, a state prisoner currently incarcerated at Salinas Valley State Prison (“SVSP”), 12 13 has filed a pro se civil rights complaint under 42 U.S.C. § 1983. He alleges a claim of deliberate 14 indifference to medical needs against SVSP Physician Edward Birdsong, M.D., stemming from 15 severe complications from treatment Plaintiff received from February and April 2013. Dkt. 1 at 3. 16 Plaintiff has filed a motion for leave to proceed in forma pauperis, which will be granted in 17 a separate written Order. Venue is proper because the events giving rise to the claim are alleged to have occurred at 18 19 SVSP which is located in this judicial district. See 28 U.S.C. § 1391(b). In his complaint, Plaintiff has named Defendant Birdsong and the California Department 20 21 of Corrections and Rehabilitation (“CDCR”). Plaintiff seeks monetary damages. DISCUSSION 22 23 24 I. STANDARD OF REVIEW A federal court must conduct a preliminary screening in any case in which a prisoner seeks 25 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 27 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 28 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se 1 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 2 Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements, 3 4 namely that: (1) a right secured by the Constitution or laws of the United States was violated, and 5 (2) the alleged violation was committed by a person acting under the color of state law. West v. 6 Atkins, 487 U.S. 42, 48 (1988). 7 II. LEGAL CLAIMS 8 A. 9 The Eleventh Amendment prevents the CDCR, which is a state agency, from being sued in Claim Against CDCR federal court. See Simmons v. Sacramento County Superior Court, 318 F.3d 1156,1161 (9th Cir. 11 United States District Court Northern District of California 10 2003) (Eleventh Amendment bars suit against state superior court and its employees); Bennett v. 12 California, 406 F.2d 36, 39 (9th Cir. 1969) (California Adult Authority and California Department 13 of Corrections not persons within meaning of Civil Rights Act); see also Raygor v. Regents of the 14 University of Minnesota, 534 U.S. 533, 541-42 (2002) (Eleventh Amendment bar includes state 15 law claims brought against a state in federal court under the supplemental jurisdiction statute, 28 16 U.S.C. § 1367). All claims against the CDCR—state and federal—are DISMISSED. 17 B. 18 Deliberate indifference to serious medical needs violates the Eighth Amendment’s Deliberate Indifference to Medical Needs Claim 19 proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 20 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, 21 WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc); Jones v. 22 Johnson, 781 F.2d 769, 771 (9th Cir. 1986). A determination of “deliberate indifference” involves 23 an examination of two elements: the seriousness of the prisoner’s medical need and the nature of 24 the defendant’s response to that need. See McGuckin, 974 F.2d at 1059. A “serious” medical 25 need exists if the failure to treat a prisoner’s condition could result in further significant injury or 26 the “unnecessary and wanton infliction of pain.” Id. (citing Estelle v. Gamble, 429 U.S. at 104). 27 A prison official is deliberately indifferent if he or she knows that a prisoner faces a substantial 28 risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer 2 1 2 v. Brennan, 511 U.S. 825, 837 (1994). Liberally construed, Plaintiff’s allegations that Defendant Birdsong prescribed certain 3 “highly dangerous” medication for a “sinus problem” and caused Plaintiff to suffer gout, “deep 4 vein thrombosis, and pulmonary embolism” state a cognizable deliberate indifference claim 5 against Defendant Birdsong. Plaintiff claims that he is “experiencing lifelong threats of recurring 6 blood clots, debilitating pain as well as swollen limbs even after two years of this misdiagnosis.” 7 Dkt. 1 at 3. Accordingly, this claim may proceed against this Defendant. CONCLUSION 8 9 For the foregoing reasons, the Court orders as follows: 1. All claims against the CDCR—state and federal—are DISMISSED. 11 United States District Court Northern District of California 10 2. Plaintiff states a cognizable Eighth Amendment claim for deliberate indifference to 12 13 Plaintiff’s serious medical needs against Defendant Birdsong. 3. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of 14 Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint 15 and all attachments thereto (dkt. 1) and a copy of this Order to SVSP Physician Edward 16 Birdsong, M.D. The Clerk shall also mail a copy of the complaint and a copy of this Order to the 17 State Attorney General’s Office in San Francisco. Additionally, the Clerk shall mail a copy of this 18 Order to Plaintiff. 19 4. Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure requires 20 Defendant to cooperate in saving unnecessary costs of service of the summons and complaint. 21 Pursuant to Rule 4, if Defendant, after being notified of this action and asked by the Court, on 22 behalf of Plaintiff, to waive service of the summons, fail to do so, Defendant will be required to 23 bear the cost of such service unless good cause be shown for the failure to sign and return the 24 waiver form. If service is waived, this action will proceed as if Defendant had been served on the 25 date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendant will not be 26 required to serve and file an answer before sixty (60) days from the date on which the request for 27 waiver was sent. (This allows a longer time to respond than would be required if formal service of 28 summons is necessary.) Defendant is asked to read the statement set forth at the foot of the waiver 3 1 form that more completely describes the duties of the parties with regard to waiver of service of 2 the summons. If service is waived after the date provided in the Notice but before Defendant has 3 been personally served, the Answer shall be due sixty (60) days from the date on which the 4 request for waiver was sent or twenty (20) days from the date the waiver form is filed, whichever 5 is later. 6 7 5. Procedure. The following briefing schedule shall govern dispositive motions in this action: a. 8 9 Defendant shall answer the complaint in accordance with the Federal Rules of Civil No later than sixty (60) days from the date their answer is due, Defendant shall file a motion for summary judgment or other dispositive motion. The motion must be supported by adequate factual documentation, must conform in all respects to Federal Rule of 11 United States District Court Northern District of California 10 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from 12 the events at issue. A motion for summary judgment also must be accompanied by a Rand1 notice 13 so that Plaintiff will have fair, timely and adequate notice of what is required of him in order to 14 oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out 15 in Rand must be served concurrently with motion for summary judgment). A motion to dismiss 16 for failure to exhaust available administrative remedies must be accompanied by a similar notice. 17 However, the Court notes that under the new law of the circuit, in the rare event that a failure to 18 exhaust is clear on the face of the complaint, Defendant may move for dismissal under Rule 19 12(b)(6) as opposed to the previous practice of moving under an unenumerated Rule 12(b) motion. 20 Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (overruling Wyatt v. Terhune, 315 F.3d 1108, 21 1119 (9th Cir. 2003), which held that failure to exhaust available administrative remedies under 22 the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), should be raised by a defendant as an 23 unenumerated Rule 12(b) motion). Otherwise if a failure to exhaust is not clear on the face of the 24 complaint, Defendant must produce evidence proving failure to exhaust in a motion for summary 25 judgment under Rule 56. Id. If undisputed evidence viewed in the light most favorable to 26 Plaintiff shows a failure to exhaust, Defendant is entitled to summary judgment under Rule 56. Id. 27 28 1 Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). 4 1 But if material facts are disputed, summary judgment should be denied and the district judge 2 rather than a jury should determine the facts in a preliminary proceeding. Id. at 1168. 3 If Defendant is of the opinion that this case cannot be resolved by summary judgment, 4 Defendant shall so inform the Court prior to the date the summary judgment motion is due. All 5 papers filed with the Court shall be promptly served on Plaintiff. 6 b. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 7 and served on Defendant no later than twenty-eight (28) days after the date on which Defendant’s 8 motion is filed. 9 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 11 United States District Court Northern District of California 10 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 12 be granted when there is no genuine issue of material fact—that is, if there is no real dispute about 13 any fact that would affect the result of your case, the party who asked for summary judgment is 14 entitled to judgment as a matter of law, which will end your case. When a party you are suing 15 makes a motion for summary judgment that is properly supported by declarations (or other sworn 16 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 17 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 18 as provided in Rule 56(c), that contradicts the facts shown in the defendant’s declarations and 19 documents and show that there is a genuine issue of material fact for trial. If you do not submit 20 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 21 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 22 F.3d at 962-63. 23 Plaintiff also is advised that—in the rare event that Defendant argues that the 24 failure to exhaust is clear on the face of the complaint—a motion to dismiss for failure to exhaust 25 available administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit 26 without prejudice. To avoid dismissal, you have the right to present any evidence to show that 27 you did exhaust your available administrative remedies before coming to federal court. Such 28 evidence may include: (1) declarations, which are statements signed under penalty of perjury by 5 1 you or others who have personal knowledge of relevant matters; (2) authenticated documents— 2 documents accompanied by a declaration showing where they came from and why they are 3 authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements 4 in your complaint insofar as they were made under penalty of perjury and they show that you have 5 personal knowledge of the matters state therein. As mentioned above, in considering a motion to 6 dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment 7 motion under Rule 56, the district judge may hold a preliminary proceeding and decide disputed 8 issues of fact with regard to this portion of the case. Albino, 747 F.3d at 1168. (The notices above do not excuse Defendant’s obligation to serve similar notices again 9 concurrently with motions to dismiss for failure to exhaust available administrative remedies and 11 United States District Court Northern District of California 10 motions for summary judgment. Woods, 684 F.3d at 935.) d. 12 13 date Plaintiff’s opposition is filed. e. 14 15 Defendant shall file a reply brief no later than fourteen (14) days after the 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. 6. 16 Discovery may be taken in this action in accordance with the Federal Rules of Civil 17 Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendant to depose 18 Plaintiff and any other necessary witnesses confined in prison. 7. 19 All communications by Plaintiff with the Court must be served on Defendant or 20 Defendant’s counsel, once counsel has been designated, by mailing a true copy of the document to 21 them. 22 8. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 23 informed of any change of address and must comply with the Court’s orders in a timely fashion. 24 Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes 25 while an action is pending must promptly file a notice of change of address specifying the new 26 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 27 directed to the pro se party by the Court has been returned to the Court as not deliverable, and 28 (2) the Court fails to receive within sixty days of this return a written communication from the pro 6 1 2 se party indicating a current address. See L.R. 3-11(b). 9. Extensions of time are not favored, though reasonable extensions will be granted. 3 Any motion for an extension of time must be filed no later than fourteen (14) days prior to the 4 deadline sought to be extended. 5 6 7 8 IT IS SO ORDERED. Dated: January 6, 2016 ______________________________________ YVONNE GONZALEZ ROGERS United States District Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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