Thomas v. Rodriguez et al

Filing 24

ORDER. IT IS HEREBY ORDERED that: 1. The Clerk shall issue a summons as to Plaintiff's Second Amended Complaint (ECF No. 23) upon Defendants Rodriguez and Colio and shall and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for e ach Defendant; 2. Defendants Rodriguez and Colio are thereafter ORDERED to reply to Plaintiff's Second Amended Complaint within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g )(2); 3. Plaintiff shall serve upon Defendants Rodriguez and Colio or, if appearance has been entered by counsel, upon Defendants' counsel, a copy of every further pleading or other document submitted for consideration of the Court; 4. Defendant s Nurse Nunez and Dr. Eslock are DISMISSED without further leave to amend pursuant to the screening provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A(b); 5. The remaining Defendants are DISMISSED without prejudice for lack of venue pursuant to 28 U.S.C. §§ 84(c)(1), 1391(b) and 1406(a). Signed by Judge Anthony J. Battaglia on 4/13/2017.(All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SAMMY THOMAS, 12 CDCR # F-12551, Civil No. Plaintiff, 13 vs. 16 17 J. RODRIGUEZ and P. COLIO, 18 19 20 ORDER: (1) DIRECTING THE U.S. MARSHAL TO EFFECT SERVICE OF THE SECOND AMENDED COMPLAINT UPON DEFENDANTS RODRIGUEZ AND COLIO; 14 15 16cv2211-AJB (JMA) Defendants, 21 (2) SUA SPONTE DISMISSING DEFENDANTS DR. ESLOCK AND NURSE NUNEZ PURSUANT TO 28 U.S.C. §§ 1915 (e)(2) AND 1915A(b); and, (3) DISMISSING REMAINING DEFENDANTS FOR LACK OF VENUE PURSUANT TO 28 U.S.C. §§ 84(c)(1), 1391(b) AND 1406(a) 22 23 On August 29, 2016, Sammy Thomas (“Plaintiff”), a California state prisoner 24 incarcerated at the California State Prison Los Angeles County (“Lancaster”), in 25 Lancaster, California, filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. 26 § 1983. (ECF No. 1.) Plaintiff alleged that while he was housed at Calipatria State 27 Prison (“Calipatria”) in Imperial, California, he was transported to an outside hospital 28 by two Calipatria Correctional Officers, Defendants J. Rodriguez and P. Colio, the only I:\Chambers Battaglia\DJ CASES\2 Orders to be filed\16cv2211-dsm&serve.wpd -1- 16cv2211 1 Defendants named in the Complaint, who he claimed violated his state and federal rights 2 when they failed to secure him with a seatbelt during transport, which resulted in an 3 injury when the van made a sudden stop. (Compl. at 3-6.) Plaintiff did not pay the civil 4 filing fee required by 28 U.S.C. § 1914(a) to commence a civil action, but filed a Motion 5 to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.) 6 On December 1, 2016, the Court granted Plaintiff leave to proceed in forma 7 pauperis. (ECF No. 5.) The Court also dismissed the Complaint for failure to state a 8 claim under 42 U.S.C. § 1983 because Plaintiff had failed to allege facts supporting the 9 objective prong of an Eighth Amendment deliberate indifference claim, as he did not 10 provide details regarding his injury or medical needs sufficient to allege they were 11 serious, and failed to allege facts supporting the subjective prong of such a claim as he 12 merely alleged that Defendants Rodriguez and Colio acted negligently rather than 13 knowing of and deliberately disregarding a serious risk to his safety or serious medical 14 needs. (Id. at 6-9.) Plaintiff was informed of these deficiencies of his pleading and 15 granted leave to amend his Complaint. (Id.) 16 On February 6, 2017, Plaintiff filed a First Amended Complaint (“FAC”), in which 17 he re-alleged his claims against Defendants Rodriguez and Colio regarding their failure 18 to restrain him during his trip to the outside hospital, and added claims against 19 Defendants Nurse Nunez and Dr. Eslock, who treated him at the Calipatria infirmary 20 upon his return for the injury sustained during transport. (ECF No. 7.) On February 28, 21 2017, the Court issued an Order in which it found that the allegations against Defendants 22 Rodriguez and Colio in the FAC survived screening under 28 U.S.C. §§ 1915(e)(2) and 23 1915A(b), but that the allegations against Defendants Nurse Nunez and Dr. Eslock did 24 not. (ECF No. 22.) The Court dismissed Defendants Nurse Nunez and Dr. Eslock 25 without prejudice, and gave Plaintiff the option of filing a Second Amended Complaint 26 in an attempt to cure the pleading deficiencies, or proceed with his FAC and have the 27 Court direct the United States Marshal to effect service upon Defendants Rodriguez and 28 Colio. (Id.) I:\Chambers Battaglia\DJ CASES\2 Orders to be filed\16cv2211-dsm&serve.wpd -2- 16cv2211 1 On April 10, 2017, Plaintiff filed a Second Amended Complaint, which is now the 2 operative pleading in this action. (ECF No. 23.) Plaintiff re-alleges his claim against 3 Defendants Rodriguez and Colio regarding their failure to properly restrain him during 4 transport, sets forth new allegations and new claims against Defendant Nurse Nunez, 5 names Defendant Dr. Eslock as a Defendant but does not set forth any allegations against 6 him, and adds additional claims against additional Defendants regarding the medical care 7 he has received after he was transferred to Lancaster, where he is currently incarcerated. 8 (Id.) 9 I. 10 Defendants Rodriguez and Colio For the reasons set forth in this Court’s February 28, 2017 Order, the Court finds 11 that Plaintiff’s allegations against Defendants Rodriguez and Colio survive the sua 12 sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). (See ECF No. 22 13 at 6.) Accordingly, the Court finds Plaintiff is entitled to U.S. Marshal service on his 14 behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all 15 process, and perform all duties in [IFP] cases.”); FED.R.CIV.P. 4(c)(3) (“[T]he court may 16 order that service be made by a United States marshal or deputy marshal . . . if the 17 plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”) 18 II. Defendants Nurse Nunez and Dr. Eslock 19 Other than Rodriguez and Colio, the only other Calipatria Defendants named in 20 the Second Amended Complaint are Defendants Nurse Nunez and Dr. Eslock. (SAC No. 21 23 at 2.) In the FAC, Plaintiff alleged that he was treated at the Calipatria infirmary by 22 these Defendants upon his return for the injury he sustained during transport, but did not 23 allege what they did or failed to do which demonstrated deliberate indifference to his 24 medical needs. (FAC at 12-14.) Because the FAC contained no facts that showed these 25 Defendants had acted with deliberate indifference to Plaintiff’s serious medical needs by 26 knowing of and disregarding an excessive risk to his health, they were dismissed 27 pursuant to the screening provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 28 Plaintiff was provided leave to amend the FAC against them. (ECF No. 22 at 8-9.) I:\Chambers Battaglia\DJ CASES\2 Orders to be filed\16cv2211-dsm&serve.wpd -3- 16cv2211 1 Although Plaintiff now names Dr. Eslock as a Defendant in the Second Amended 2 Complaint (see SAC at 2), he sets forth no allegations whatsoever regarding him. For 3 the same reasons set forth in the Court’s February 28, 2017, Order, Plaintiff’s allegations 4 against this Defendant do not survive the screening provisions of 28 U.S.C. 5 §§ 1915(e)(2) and 1915A(b). (ECF No. 22 at 8-9.) 6 Plaintiff alleges that Defendant Nurse Nunez examined him and found no “bump 7 or injury,” which he characterizes as a lie, thereby making it more difficult for him to 8 proceed with this action. (SAC at 9.) Plaintiff claims that as a result this Defendant 9 violated his right to access to the courts, which in turn violated his right to due process, 10 and violated his right of access to medical care. (Id.) With respect to the deliberate 11 indifference to medical care aspect of the claim against Defendant Nurse Nunez, 12 Plaintiff’s allegations do not survive the screening provisions of 28 U.S.C. §§ 1915(e)(2) 13 and 1915A(b) for the same reasons set forth in this Court’s February 28, 2017 Order. 14 (ECF No. 22 at 8-9.) Neither has Plaintiff alleged an access to courts claim based on his 15 allegation that Defendant Nunez failed to immediately diagnose his injury upon return 16 to Calipatria from being transported to the outside hospital. He has previously alleged 17 that his injury was diagnosed and treated several hours later. (FAC at 12-14.) He has 18 not and cannot allege an adverse effect on his ability to litigate the present action as a 19 result of that short delay. See Christopher v. Harbury, 536 U.S. 403, 414 (2002) (holding 20 that in order to state a claim for a deprivation of a constitutional right to acess to the 21 courts, a plaintiff must allege actions by officials that caused the denial of access to the 22 courts). Thus, Plaintiff’s allegations against Defendant Nurse Nunez once again fail to 23 to survive the screening provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A(b). 24 Accordingly, Defendants Nurse Nunez and Dr. Eslock are DISMISSED. The 25 dismissal is without further leave to amend because it is now clear that Plaintiff is unable 26 to state a claim against these Defendants. See Lopez v. Smith, 203 F.3d 1122, 1130-31 27 (9th Cir. 2000) (en banc) (leave to amend is not appropriate where “the pleading could 28 not possibly be cured by the allegation of other facts.”) I:\Chambers Battaglia\DJ CASES\2 Orders to be filed\16cv2211-dsm&serve.wpd -4- 16cv2211 1 III. Lancaster Defendants 2 The remaining claims against the remaining Defendants in the Second Amended 3 Complaint involve medical care which Plaintiff has received while housed at Lancaster. 4 (SAC at 3-4, 7-8.) Proper venue for Plaintiff’s claims against these Defendants does not 5 lie in this Court. 6 Venue may be raised by a court sua sponte where the defendant has not yet filed 7 a responsive pleading and the time for doing so has not run. Costlow v. Weeks, 790 F.2d 8 1486, 1488 (9th Cir. 1986). Section 1391(b) of Title 28 of the U.S. Code provides, in 9 pertinent part, that a “civil action may be brought in – (1) a judicial district in which any 10 defendant resides, if all defendants are residents of the State in which the district is 11 located; [or] (2) a judicial district in which a substantial part of the events or omissions 12 giving rise to the claim occurred, or a substantial part of property that is the subject of 13 the action is situated[.]” 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal 14 Co. v. Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). “The district court 15 of a district in which is filed a case laying venue in the wrong division or district shall 16 dismiss, or if it be in the interests of justice, transfer such case to any district or division 17 in which it could have been brought.” 28 U.S.C. § 1406(a). 18 Plaintiff alleges constitutional violations arising out of medical care he received 19 at Lancaster, where he is currently incarcerated. (SAC at 7-8.) That prison is located in 20 Los Angeles County. See 28 U.S.C. § 84(c)(2). The claims regarding the medical care 21 he received in Lancaster are brought against Defendants who Plaintiff indicates reside 22 in Los Angeles County. (SAC at 3.) None of the Lancaster Defendants is alleged to 23 reside in either San Diego or Imperial County, and no event or omission giving rise to 24 any of Plaintiff’s claims regarding the medical care he received at Lancaster is alleged 25 to have occurred here. See 28 U.S.C. § 84(d) (“The Southern District of California 26 comprises the counties of Imperial and San Diego.”) 27 Therefore, the Court finds venue regarding Plaintiff’s medical care claims is 28 proper in the Central District of California, Western Division, pursuant to 28 U.S.C. I:\Chambers Battaglia\DJ CASES\2 Orders to be filed\16cv2211-dsm&serve.wpd -5- 16cv2211 1 § 84(c)(2), but not in the Southern District of California pursuant to 28 U.S.C. § 84(d). 2 Accordingly, the remaining Defendants in this action are DISMISSED without prejudice 3 to Plaintiff to pursue his claims against these Defendants in the Central District of 4 California, Western Division. See 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488. 5 IV. CONCLUSION AND ORDER 6 Good cause appearing, IT IS HEREBY ORDERED that: 7 1. The Clerk shall issue a summons as to Plaintiff’s Second Amended 8 Complaint (ECF No. 23) upon Defendants Rodriguez and Colio and shall and forward 9 it to Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant. In addition, 10 the Clerk shall provide Plaintiff with a certified copy of the Order granting Plaintiff leave 11 to proceed IFP (ECF No. 5), a certified copy of his Second Amended Complaint (ECF 12 No. 23), and the summons so that he may serve each Defendant. Upon receipt of this 13 “IFP Package,” Plaintiff is directed to complete the Form 285s as completely and 14 accurately as possible, and to return them to the United States Marshal according to the 15 instructions provided by the Clerk in the letter accompanying his IFP package. Upon 16 receipt, the U.S. Marshal shall serve a copy of the Second Amended Complaint and 17 summons upon each Defendant as directed by Plaintiff on the USM Form 285s. All 18 costs of service shall be advanced by the United States. See 28 U.S.C. § 1915(d); 19 FED.R.CIV.P. 4(c)(3). 20 2. Defendants Rodriguez and Colio are thereafter ORDERED to reply to 21 Plaintiff’s Second Amended Complaint within the time provided by the applicable 22 provisions of Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while 23 a defendant may occasionally be permitted to “waive the right to reply to any action 24 brought by a prisoner confined in any jail, prison, or other correctional facility under 25 section 1983,” once the Court has conducted its sua sponte screening pursuant to 28 26 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination 27 based on the face on the pleading alone that Plaintiff has a “reasonable opportunity to 28 prevail on the merits,” the defendant is required to respond). I:\Chambers Battaglia\DJ CASES\2 Orders to be filed\16cv2211-dsm&serve.wpd -6- 16cv2211 1 3. Plaintiff shall serve upon Defendants Rodriguez and Colio or, if appearance 2 has been entered by counsel, upon Defendants’ counsel, a copy of every further pleading 3 or other document submitted for consideration of the Court. Plaintiff shall include with 4 the original paper to be filed with the Clerk of the Court a certificate stating the manner 5 in which a true and correct copy of any document was served on Defendants, or counsel 6 for Defendants, and the date of service. Any paper received by the Court which has not 7 been filed with the Clerk or which fails to include a Certificate of Service will be 8 disregarded. 9 4. Defendants Nurse Nunez and Dr. Eslock are DISMISSED without further 10 leave to amend pursuant to the screening provisions of 28 U.S.C. §§ 1915(e)(2) and 11 1915A(b). 12 5. The remaining Defendants are DISMISSED without prejudice for lack of 13 venue pursuant to 28 U.S.C. §§ 84(c)(1), 1391(b) and 1406(a). 14 IT IS SO ORDERED. 15 16 DATED: April 13, 2017 17 Hon. Anthony J. Battaglia U.S. District Judge 18 19 20 21 22 23 24 25 26 27 28 I:\Chambers Battaglia\DJ CASES\2 Orders to be filed\16cv2211-dsm&serve.wpd -7- 16cv2211

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