Starr v. Alameda County Jail

Filing 28

ORDER OF PARTIAL DISMISSAL; ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION. Habeas Answer due by 12/23/2013. Dispositive Motion due by 1/23/2014. Signed by Judge Ronald M. Whyte on 10/22/13. (jgS, COURT STAFF) (Filed on 10/23/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SHANNON LEE STARR,

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Plaintiff,

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v.
ALAMEDA COUNTY JAIL, et al.,

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Defendants.

No. C 12-4400 RMW (PR)
ORDER OF PARTIAL DISMISSAL;
ORDER OF SERVICE; DIRECTING
DEFENDANTS TO FILE
DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION

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Plaintiff, a detainee pending involuntary civil commitment, proceeding pro se, filed a
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second amended civil rights complaint pursuant to 42 U.S.C. § 1983. For the reasons that
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follow, the court dismisses some defendants and orders service upon the remaining defendants.
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DISCUSSION
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A.

Standard of Review

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A federal court must conduct a preliminary screening in any case in which a prisoner
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seeks redress from a governmental entity or officer or employee of a governmental entity. See
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28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss
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any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or
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seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1),
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(2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police
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Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice
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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) that

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

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

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B.

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Plaintiff’s Claims
In his second amended complaint, plaintiff raises claims of punishment, in violation of

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the Fourteenth Amendment; retaliation; a violation of the right to free exercise of religion; a

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violation of the Americans with Disabilities Act and Rehabilitation Act; and state law claims.

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Plaintiff names 33 defendants as well as 50 John Doe defendants.

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In the court’s previous order dismissing plaintiff’s complaint with leave to amend, the

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court advised plaintiff that, inter alia, the complaint appeared to include several misjoined

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defendants and claims. The court also warned plaintiff that his claims would have to be properly

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joined under Federal Rules of Civil Procedure 18 and 20, lest his improper claims and/or

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defendants would be dismissed.

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Under Rule 20 of the Federal Rules of Civil Procedure, a plaintiff may join any persons

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as defendants if: (1) any right to relief asserted against the defendants relates to or arises out of

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the same transaction, occurrence, or series of transactions or occurrences; and (2) there is at least

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one question of law or fact common to all the defendants. Fed. R. Civ. P. 20(a); Coughlin v.

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Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997). Once a defendant is properly joined under Rule

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20, the plaintiff may join, as independent or alternative claims, as many claims as he has against

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that defendant, irrespective of whether those additional claims also satisfy Rule 20. See Fed. R.

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Civ. P. 18(a); Intercon Research Assoc., Ltd. v. Dresser Indus. Inc., 696 F.2d 53, 57 (7th Cir.

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1982) (“[J]oinder of claims under Rule 18 becomes relevant only after the requirements of Rule

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20 relating to joinder of parties has been met with respect to the party against whom the claim is

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sought to be asserted; the threshold question, then, is whether joinder of [a defendant] as a party

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was proper under Rule 20(a).”).

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The “same transaction” requirement in Rule 20 refers to “similarity in the factual

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background of a claim; claims that arise out of a systematic pattern of events” and have a “very
Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice
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definite logical relationship” arise out of the same transaction and occurrence. Bautista v. Los

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Angeles County, 216 F.3d 837, 842-843 (9th Cir. 2000) (Reinhardt, J., concurring) (quoting

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Coughlin, 130 F.3d at 1350 and Union Paving Co. v. Downer Corp., 276 F.2d 468, 470 (9th Cir.

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1960)). In addition, “the mere fact that all [of a plaintiff’s] claims arise under the same general

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law does not necessarily establish a common question of law or fact.” Coughlin, 130 F.3d at

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1351. Claims “involv[ing] different legal issues, standards, and procedures” do not involve

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common factual or legal questions. Id.

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In plaintiff’s second amended complaint, plaintiff’s claims appear to involve separate

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incidents and distinct sets of defendants. For example, in plaintiff’s Fourteenth Amendment

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claim, plaintiff alleges that defendants Alameda County and Sheriff Gregory J. Ahern

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promulgated a policy or practice of refusing to provide proper medical care to inmates, and

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defendants Dr. Orr; Dr Michael Pompey; Dr. Chaplain Liu; Dr. Barber, DDS; Dr. Chan, MD; Dr.

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Gabaron, MD; Dr. Elizabeth Mastroianni, MD; Dr. Lane Melgarejo, MD; and Dr. Newell, MD

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violated his right to be free from punishment. In plaintiff’s retaliation claim, plaintiff alleges

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that a different set of defendants, including Alameda County and Sheriff Gregory J. Ahern,

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violated plaintiff’s First Amendment right to be free from retaliation. In this retaliation claim,

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plaintiff sets forth events that are separate and distinct from each other and do not appear to have

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a definite logical relationship with the defendants listed in plaintiff’s deliberate indifference

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claim. Plaintiff has the same problem with defendants listed in both his free exercise claim and

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Americans with Disabilities Act and Rehabilitation Act.

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Unrelated claims that involve different defendants must be brought in separate lawsuits.

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See George, 507 F.3d at 607. This rule is not only intended to avoid confusion that arises out of

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bloated lawsuits, but also to ensure that prisoners pay the required filing fees for their lawsuits

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and prevent prisoners from circumventing the three strikes rule under the Prison Litigation

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Reform Act. 28 U.S.C. § 1915(g). The court finds that plaintiff’s second amended complaint

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violates Rule 20(a). Dismissal of the entire action is not necessary, however, as the improper

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joinder problem can be solved by dismissing the improperly joined parties. See Fed. R. Civ. P.

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21. Plaintiff’s deliberate indifference claim names Alameda County, Sheriff Ahern, Dr. Michael
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Pompey; Dr. Orr; Dr. Chaplain Liu; Dr. Barber, DDS; Dr. Chan, MD; Dr. Gabaron, MD; Dr.

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Elizabeth Mastroianni, MD; Dr. Lane Melgarejo, MD; and Dr. Newell, MD. They are properly

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joined under Rule 20(a). To remedy the misjoined parties, the court will dismiss the remaining

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claims and defendants. See Fed. R. Civ. P. 21 (misjoined parties may be dropped by the court on

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its own initiative at any state of the action). The dismissal will be without prejudice to plaintiff

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filing a new and separate lawsuit raising the dismissed claims.

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The court also dismisses defendant Dr. Chaplain Liu. Plaintiff’s only allegation against

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Dr. Liu is that when plaintiff saw Dr. Liu, Dr. Liu increased plaintiff’s blood pressure

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medication and, in February 2013, informed plaintiff that plaintiff would have to be on dialysis

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and/or need a kidney transplant in approximately one year. This is not sufficient to state a

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cognizable claim against Dr. Liu. Accordingly, Dr. Liu is DISMISSED without prejudice.

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Liberally construed, the court finds that plaintiff, a pretrial detainee awaiting civil

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commitment proceedings, has stated a cognizable claim that Alameda County, Sheriff Ahern, Dr.

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Michael Pompey; Dr. Orr; Dr. Barber, DDS; Dr. Chan, MD; Dr. Gabaron, MD; Dr. Elizabeth

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Mastroianni, MD; Dr. Lane Melgarejo, MD; and Dr. Newell, MD violated plaintiff’s Fourteenth

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Amendment right to due process.

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CONCLUSION

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For the foregoing reasons, the court hereby orders as follows:

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1.

The clerk of the court shall mail a Notice of Lawsuit and Request for Waiver of

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Service of Summons, two copies of the Waiver of Service of Summons, a copy of the second

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amended complaint and all attachments thereto (docket no. 22), and a copy of this order to

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Alameda County, Sheriff Ahern, Dr. Michael Pompey; Dr. Orr; Dr. Barber, DDS; Dr.

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Chan, MD; Dr. Gabaron, MD; Dr. Elizabeth Mastroianni, MD; Dr. Lane Melgarejo, MD;

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and Dr. Newell, MD at Alameda County and the Santa Rita County Jail.

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The clerk of the court shall also mail a courtesy copy of the complaint and a copy of this

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order to County Counsel of Alameda County at 1221 Oak Street, Suite 450, Oakland CA

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94612. Additionally, the clerk shall mail a copy of this order to plaintiff.

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2.

Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure

Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice
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requires them to cooperate in saving unnecessary costs of service of the summons and complaint.

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Pursuant to Rule 4, if defendants, after being notified of this action and asked by the court, on

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behalf of plaintiff, to waive service of the summons, fail to do so, they will be required to bear

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the cost of such service unless good cause is shown for their failure to sign and return the waiver

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form. If service is waived, this action will proceed as if defendants had been served on the date

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that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), defendants will not be required

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to serve and file an answer before sixty (60) days from the date on which the request for waiver

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was sent. (This allows a longer time to respond than would be required if formal service of

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summons is necessary.) Defendants are asked to read the statement set forth at the bottom of the

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waiver form that more completely describes the duties of the parties with regard to waiver of

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service of the summons. If service is waived after the date provided in the Notice but before

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defendants have been personally served, the Answer shall be due sixty (60) days from the date

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on which the request for waiver was sent or twenty (20) days from the date the waiver form is

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filed, whichever is later.

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3.

No later than ninety (90) days from the date of this order, defendants shall file a

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motion for summary judgment or other dispositive motion with respect to the cognizable claim

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in the complaint.

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a.

If defendants elect to file a motion to dismiss on the grounds that plaintiff

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failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a),

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defendants shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315

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F.3d 1108, 1119-20 (9th Cir. 2003).

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b.

Any motion for summary judgment shall be supported by adequate factual

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documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil

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Procedure. Defendants are advised that summary judgment cannot be granted, nor

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qualified immunity found, if material facts are in dispute. If defendants are of the opinion

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that this case cannot be resolved by summary judgment, they shall so inform the court

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prior to the date the summary judgment motion is due.

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4.

Plaintiff’s opposition to the dispositive motion shall be filed with the court and

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served on defendants no later than twenty-eight (28) days from the date defendants’ motion is

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filed. Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex

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Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must come

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forward with evidence showing triable issues of material fact on every essential element of his

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claim).

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5.

Defendants shall file a reply brief no later than fourteen (14) days after plaintiff’s

opposition is filed.
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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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All communications by the plaintiff with the court must be served on defendants

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or defendants’ counsel, by mailing a true copy of the document to defendants or defendants’

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counsel.

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8.

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

No further court order is required before the parties may conduct discovery.
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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court

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and all parties informed of any change of address and must comply with the court’s orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:
RONALD M. WHYTE
United States District Judge

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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

SHANNON LEE STARR,

Case Number: CV12-04400 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
ALAMEDA COUNTY JAIL et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on October 23, 2013, 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.

Shannon Lee Starr ALJ 123/1-A-1
Alameda County Santa Rita Jail
5325 Broder Boulevard
Dublin, CA 94568
Dated: October 23, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk