McElroy v. Ikegbu

Filing 8

ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK. Jeffrey Beard is DISMISSED from this action. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint, all attachments thereto, and a copy of this order upon Defendants N. Ikegbu and Dr. Sayre at Pelican Bay State Prison (P.O. Box 7000, Crescent City, CA 95531 -7000) and upon Defendant Dale Robertson at High Desert State Prison (P.O. Box 750, Susanville, CA 96127-0750). The Clerk shall also mail a copy of this Order to Plaintiff. Habeas Answer or Dispositive Motion due by 7/27/2015. Signed by Judge Edward J. Davila on 5/28/2015. (ecg, COURT STAFF) (Filed on 5/28/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the For the Northern District of California
Northern District of California

United States District Court
United States District Court

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JABOR MCELROY,

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Plaintiff,

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v.

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M. IKEGBU, et al.,
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Defendants.
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No. C 15-01599 EJD (PR)
ORDER OF SERVICE; DIRECTING
DEFENDANTS TO FILE
DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION; INSTRUCTIONS TO
CLERK

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Plaintiff, a state prisoner at Pelican Bay State Prison (“PBSP”), filed the

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instant civil rights action in pro se pursuant to 42 U.S.C. § 1983, against prison

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officials. Plaintiff’s motion for leave to proceed in forma pauperis will be granted in

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a separate order.

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DISCUSSION
A.

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

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must
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identify any cognizable claims and dismiss any claims that are frivolous, malicious,

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

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defendant who is immune from such relief. See id. § 1915A(b)(1),(2). Pro se

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

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elements: (1) that a right secured by the Constitution or laws of the United States

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was violated, and (2) that the alleged violation was committed by a person acting

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under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
B.

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For the Northern District of California

United States District Court

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Venue
Venue generally is proper in a judicial district in which: (1) any defendant

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resides, if all defendants are residents of the state in which the district is located; (2)

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a substantial part of the events or omissions giving rise to the claim occurred, or a

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substantial part of property that is the subject of the action is situated; or (3) any

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defendant is subject to the court’s personal jurisdiction, if there is no district in

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which the action may otherwise be brought. 28 U.S.C. § 1391(b). Venue is

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appropriate in this district because a substantial part of the events took place at

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PBSP which is located in Del Norte County. 28 U.S.C. § 84(a).

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C.

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Plaintiff’s Claims
According to the complaint, on May 13, 2012, Defendant Dale Robertson, a

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physician’s assistant at High Desert State Prison, discontinued Plaintiff’s

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chronological orders for lower bunk lower tier, a cane, soft shoes, and a medical

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mattress. (Compl. at 2-3.) The discontinuation of these chronos caused Plaintiff to

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have back spasms during which he would collapse and lose use of his leg and back,

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and during which he required medical attention. (Id. at 3.)

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On February 11, 2015, Plaintiff was assigned to a top bunk, upper tier for the

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first time. (Compl. at 3.) The placement in an upper tier top bunk caused Plaintiff’s

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body to collapse under pressure and he re-injured his back, hip, foot and ribs. (Id. at
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difficult for him to complete normal daily activities, such as walking, climbing

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stairs, bending, squatting, bathing with his right arm, and getting out of bed. (Id. at

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4.) That same day, Plaintiff was evaluated by Defendant Dr. Sayre who claimed that

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Plaintiff had not injured any bones and was merely having muscle spasms. (Ibid.)

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Dr. Sayre refused to prescribe “effective” painkillers to Plaintiff or to order an x-ray.

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(Ibid.) A week later, Plaintiff was evaluated by Defendant Dr. Ikegbu, who agreed

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with Dr. Sayre’s assessment. (Id. at 4-5.) Two weeks after seeing Dr. Ikegbu,

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Plaintiff was seen at CTC by Dr. Venes who ordered an emergency evaluation and

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an x-ray at Sutter Coast Hospital. (Id. at 5.) The x-ray showed that Plaintiff had a

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For the Northern District of California

3-4.) These injuries have caused Plaintiff great and incessant pain; and make it

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United States District Court

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broken rib and internal bleeding. (Ibid.)

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Plaintiff also alleges that Defendants have prematurely, “and without regard

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to Plaintiff’s medical condition,” discontinued Plaintiff’s “Nasacort” nasal spray,

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tear drops, medicated soap, and ipatropium inhaler, all of which are required to

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address Plaintiff’s allergies to dust, pollen, grass, shrubs, and PIA-state-issued soap.

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(Compl. at 5.) Plaintiff also claims that the ipatropium inhaler is necessary to

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address constriction of his airwaves and the releated shortness of breath and

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wheezing. (Ibid.)

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Liberally construed, Plaintiff states a cognizable Eighth Amendment claim

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that Defendants Robertson, Sayre, and Ikegbu were deliberately indifferent to

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Plaintiff’s serious medical needs when Robertson discontinued Plaintiff’s

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chronological orders; when Sayre and Ikegbu failed to provide appropriate treatment

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for Plaintiff’s injuries sustained due to his February 11, 2015 fall from an upper

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bunk; and when Robertson, Sayre and Ikegbu discontinued his allergy medications.

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See Estelle v. Gamble, 429 U.S. 97, 104 (1976).

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Plaintiff’s claim against Jeffrey Beard is DISMISSED for failure to state a

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claim. Plaintiff alleges no conduct by Beard, let alone any conduct that proximately

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caused a violation of Plaintiff’s constitutional rights. There is no respondeat
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superior liability under Section 1983, so Beard cannot be liable for the conduct of

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his subordinates simply by virtue of the fact that he is their superior. See Taylor v.

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List, 880 F.2d 1040, 1045 (9th Cir.1989) (under no circumstances is there

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respondeat superior liability under Section 1983); accord Monell v. Dep’t of Social

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Servs., 436 U.S. 658, 691 (1978) (same). Consequently, Plaintiff has failed to state

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a cognizable claim against Beard, and Beard will be dismissed from this action.

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CONCLUSION
For the reasons stated above, the Court orders as follows:

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1.

Jeffrey Beard is DISMISSED from this action.

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2.

The Clerk of the Court shall mail a Notice of Lawsuit and Request for

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For the Northern District of California

United States District Court

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

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copy of the complaint, all attachments thereto, and a copy of this order upon

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Defendants N. Ikegbu and Dr. Sayre at Pelican Bay State Prison (P.O. Box 7000,

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Crescent City, CA 95531-7000) and upon Defendant Dale Robertson at High

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Desert State Prison (P.O. Box 750, Susanville, CA 96127-0750). The Clerk shall

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also mail a copy of this Order to Plaintiff.

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3.

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

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Procedure requires them to cooperate in saving unnecessary costs of service of the

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summons and the complaint. Pursuant to Rule 4, if Defendants, after being notified

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of this action and asked by the Court, on behalf of Plaintiff, to waive service of the

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summons, fail to do so, they will be required to bear the cost of such service unless

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good cause shown for their failure to sign and return the waiver form. If service is

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waived, this action will proceed as if Defendants had been served on the date that

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

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required to serve and file an answer before sixty (60) days from the day on which

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the request for waiver was sent. (This allows a longer time to respond than would be

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required if formal service of summons is necessary.) Defendants are asked to read

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the statement set forth at the foot of the waiver form that more completely describes
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the duties of the parties with regard to waiver of service of the summons. If service

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is waived after the date provided in the Notice but before Defendants have been

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personally served, the Answer shall be due sixty (60) days from the date on which

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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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4.

No later than ninety (90) days from the date of this order, Defendants

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shall file a motion for summary judgment or other dispositive motion with respect to

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the claims in the complaint found to be cognizable above.

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a.

If Defendants elect to file a motion to dismiss on the grounds

Plaintiff failed to exhaust his available administrative remedies as required by 42

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For the Northern District of California

United States District Court

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U.S.C. § 1997e(a), Defendants shall do so in an unenumerated Rule 12(b) motion

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pursuant to Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003), cert. denied

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Alameida v. Terhune, 540 U.S. 810 (2003). The Ninth Circuit has held that

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Plaintiff must be provided with the appropriate warning and notice under

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Wyatt concurrently with Defendants’ motion to dismiss. See Woods v. Carey,

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Nos. 09-15548 & 09-16113, slip op. 7871, 7874 (9th Cir. July 6, 2012).

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b.

Any motion for summary judgment shall be supported by

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adequate factual documentation and shall conform in all respects to Rule 56 of the

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Federal Rules of Civil Procedure. Defendants are advised that summary judgment

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cannot be granted, nor qualified immunity found, if material facts are in dispute. If

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any Defendant is of the opinion that this case cannot be resolved by summary

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judgment, he shall so inform the Court prior to the date the summary judgment

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motion is due.

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5.

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

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Court and served on Defendants no later than twenty-eight (28) days from the date

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Defendants’ motion is filed.

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a.

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In the event Defendants file a motion for summary

judgment, the Ninth Circuit has held that Plaintiff must be concurrently
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provided the appropriate warnings under Rand v. Rowland, 154 F.3d 952, 963

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(9th Cir. 1998) (en banc). See Woods, Nos. 09-15548 & 09-16113, slip op. at

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7874.

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

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opposing summary judgment must come forward with evidence showing triable

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issues of material fact on every essential element of his claim). Plaintiff is cautioned

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that failure to file an opposition to Defendants’ motion for summary judgment may

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be deemed to be a consent by Plaintiff to the granting of the motion, and granting of

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judgment against Plaintiff without a trial. See Ghazali v. Moran, 46 F.3d 52, 53-54

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For the Northern District of California

Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil

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United States District Court

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(9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 F.3d 651, 653 (9th Cir. 1994).

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6.

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

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Defendants, or Defendants’ counsel once counsel has been designated, by mailing a

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true copy of the document to Defendants or Defendants’ counsel.

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9.

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

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Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or

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Local Rule 16-1 is required before the parties may conduct discovery.

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10.

It is Plaintiff’s responsibility to prosecute this case. Plaintiff must

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keep the court informed of any change of address and must comply with the court’s

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orders in a timely fashion. Failure to do so may result in the dismissal of this action

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

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Extensions of time must be filed no later than the deadline sought to be

extended and must be accompanied by a showing of good cause.

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DATED:

5/28/2015

EDWARD J. DAVILA
United States District Judge

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For the Northern District of California

United States District Court

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JARBOR MCELROY,

Case No. 5:15-cv-01599-EJD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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N. IKEGBU,
Defendant.

United States District Court
Northern District of California

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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 5/28/2015, 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.
Jarbor McElroy ID: P-71922
Pelican Bay State Prison
P. O. Box 7500
Crescent, Ca 95532

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Dated: 5/28/2015

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Richard W. Wieking
Clerk, United States District Court

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By:________________________
Elizabeth Garcia, Deputy Clerk to the
Honorable EDWARD J. DAVILA