Sandoval v. Guldseth

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] Case No.: 19-cv-1584-BAS-RBB 11 ALBERTO SANDOVAL, CDCR # AM-0186, 12 ORDER DIRECTING U.S. Plaintiff, MARSHAL TO EFFECT SERVICE 13 OF FIRST AMENDED COMPLAINT v. UPON DEFENDANTS PURSUANT 14 TO 28 U.S.C. § 1915 (d) AND Fed. R. DAVID GULDSETH, M.D. Civ. P. 4(c)(3) 15 ROMAN B. CHAM, M.D., 16 Defendants. [17] 18 Before the Court is Plaintiff’s First Amended Complaint (“FAC”). (ECF No. 8.) 19 Having conducted the sua sponte screening required by 28 U.S.C. § 1915 (e)(2) and § 20 1915A, the Court finds that the FAC sufficiently states claims for relief under 42 U.S.C. § 21 1983 and directs service of the FAC on Defendants. 22 I. PROCEDURAL HISTORY 23 On August 23, 2019, Alberto Sandoval (“Plaintiff”), incarcerated at the Richard J. 24 Donovan Correctional Facility (“RJD”) in San Diego, California filed a pro se civil rights 25 Complaint pursuant to 42 U.S.C. § 1983 . (See ECF No. 1, Compl.) In addition, Plaintiff 26 filed a Motion to Proceed In Forma Pauperis (“IFP”). (See ECF No. 2.) [27] 1 On October 7, 2019, the Court granted Plaintiff’s Motion to Proceed IFP but 2 simultaneously dismissed his Complaint for failing to state a claim against correctional 3 officials at RJD pursuant to 28 U.S.C. § 1915 (E)(2) and § 1915A(b). (See ECF No. 5 at 4 10.) The Court also severed all claims against correctional officials at Valley State Prison 5 (“VSP”) pursuant to Federal Rule of Civil Procedure 21 and directed the Clerk of Court to 6 terminate these Defendants from the Court’s docket. (See id.) 7 Plaintiff was given forty-five (45) days leave to file an amended complaint in order 8 to correct the deficiencies of pleading identified in the Court’s Order. (See id.) Plaintiff 9 later requested, and received, an extension of time to file his amended complaint. (See 10 ECF Nos. 6, 7.) On January 31, 2020, Plaintiff filed the FAC. (See ECF No. 8.) 11 II. SUA SPONTE SCREENING 12 For the reasons stated below, the Court finds that the FAC contains sufficient factual 13 matter to state a claim for relief plausible on its face, thus satisfying the screening standard. 14 A. Standard of Review 15 As the Court previously stated, because Plaintiff is a prisoner and is proceeding IFP, 16 his FAC requires a pre-Answer screening pursuant to 28 U.S.C. § 1915 (e)(2) and § 17 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP 18 complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks 19 damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122 , 1126–27 20 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915 (e)(2)); Rhodes v. Robinson, 621 21 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of 22 [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the 23 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903 , 920 n.1 (9th Cir. 2014) 24 (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 25 “The standard for determining whether a plaintiff has failed to state a claim upon 26 which relief can be granted under [Section] 1915(e)(2)(B)(ii) is the same as the Federal 27 Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, [1] 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113 , 1121 2 (9th Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the familiar 3 standard applied in the context of failure to state a claim under Federal Rule of Civil 4 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual 5 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 6 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 7 1121. While the court “ha[s] an obligation where the petitioner is pro se, particularly in 8 civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit 9 of any doubt,” Hebbe v. Pliler, 627 F.3d 338 , 342 & n.7 (9th Cir. 2010) (citing Bretz v. 10 Kelman, 773 F.2d 1026 , 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements 11 of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 12 F.2d 266 , 268 (9th Cir. 1982). 13 B. Factual Allegations 14 Plaintiff alleges that he suffers from a “large complex tear of the medial meniscus.” 15 (FAC at 3.) As a result of this condition, Plaintiff “suffers from extreme” and “persistent 16 pain and swelling” in his right knee. (Id.) This condition “hampers his ability to walk” 17 and “substantially limits [Plaintiff’s] major life’s activities, including but not limited to, 18 walking, standing, lifting, bending and working.” (Id.) 19 On January 12, 2016, Dr. John Casey, M.D.1 “recommended a total knee 20 replacement” for Plaintiff. (FAC at 3.) Dr. Casey noted that “the only treatment that is 21 going to alleviate [Plaintiff’s] discomfort is going to be a right total knee replacement.” 22 (Id.) 23 Plaintiff was examined by Dr. David Guldseth, M.D., his “Personal Care Provider,” 24 on February 8, 2017. (FAC at 5.) Plaintiff alleges Guldseth disregarded Casey’s 25 recommendation and instead determined Plaintiff’s condition could be “treated with pain [26] 27 1 Dr. Casey is not a named Defendant. 1 medications rather than recommended surgery.” (Id.) Plaintiff submitted a “request to be 2 referred back to an orthopedic surgeon to treat his right knee condition and his need for a 3 right total knee replacement surgery” on February 28, 2017. (Id.) 4 On March 23, 2017, Plaintiff was again seen by Guldseth who noted Plaintiff’s 5 “inability to walk a distance of a block without being in pain,” along with his inability to 6 “sleep at night.” (FAC at 5.) Plaintiff alleges Guldseth was “aware of the recommendation 7 for a total knee replacement as the only treatment for the Plaintiff’s right knee condition.” 8 (Id.) Plaintiff claims Guldseth “refused to refer Plaintiff to an orthopedic surgeon.” (Id.) 9 On April 26, 2017, Guldseth “continued to ignore Plaintiff’s complaints and further 10 delayed his treatment downgrading the severity of the condition.” (Id.) 11 After submitting “numerous CDC 7362 Health Care Services” request forms, 12 Guldseth “finally referred [Plaintiff] to an off site specialist.” (FAC at 7.) Plaintiff was 13 examined by Dr. Roman Cham in January of 2018, approximately one year after Guldseth 14 “first became aware of Plaintiff’s painful knee condition.” (Id.) On April 26, 2018, Cham, 15 after discussing Plaintiff’s medical history, “proceeded to recommend the total knee 16 replacement surgery” and “ordered all pre-op orders.” (Id. at 10.) Cham “requested 17 Plaintiff be cleared for surgery” and “made arrangements for Plaintiff’s surgery to take 18 place on May 9, 2018.” (Id.) Plaintiff claims Cham did not note in his report and request 19 for medical clearance that “Plaintiff should lose 50 lbs.,” be “permanently weaned off his 20 morphine treatment,” or that Plaintiff’s “diabetes be in control” before Cham would 21 perform the surgery. 22 However, Plaintiff claims Guldseth “cancelled the scheduled surgery set for May 9, 23 2018.” (FAC at 7–8.) Plaintiff filed an administrative appeal “complaining of [Guldseth’s] 24 denial of medical clearance and failure to follow the specialist’s recommendation for 25 surgery.” (Id. at 8.) Plaintiff alleges that it was “not until after the filing of his health care [27] 1 grievance” on May 21, 2018 that “RN Debra Barrett2 contacted [Cham’s] office manager” 2 and requested that Cham issue an “addendum” to his previous report indicating that Cham 3 had “cancelled the scheduled May 9, 2018 surgery rather than [Guldseth].” (Id. at 8.) 4 Cham complied with this request and “provided [Guldseth] with an addendum stating that 5 [Cham] had cancelled the scheduled surgery” citing the need for Plaintiff to lose weight 6 and be weaned off morphine. (Id. at 11.) Plaintiff claims Cham “knowingly and 7 intentionally refused to treat Plaintiff’s painful condition, when he decided to be in cahoots 8 with [Guldseth] rather than follow his own recommendation made on April 26, 2018 to 9 perform a total knee replacement on Plaintiff’s right knee.” (Id.) 10 C. Analysis 11 As currently pleaded, the Court finds that Plaintiff’s FAC contains “sufficient factual 12 matter, accepted as true” to state an Eighth Amendment claim against Defendants Guldseth 13 and Cham that are “plausible on its face,” and, therefore, is sufficient to survive the “low 14 threshold” set for sua sponte screening pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A(b). 15 See Iqbal, 556 U.S. at 678 ; Wilhelm, 680 F.3d at 1123 ; see also Estelle v. Gamble, 429 16 U.S. 97, 104 (1976) (prison officials’ deliberate indifference to an inmate’s serious medical 17 needs constitutes cruel and unusual punishment in violation of the Eighth Amendment.) 18 Accordingly, the Court will direct the U.S. Marshal to effect service upon Defendants 19 Guldseth and Cham on Plaintiff’s behalf. See 28 U.S.C. § 1915 (d) (“The officers of the 20 court shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. 21 P. 4 (c)(3) (“[T]he court may order that service be made by a United States marshal or 22 deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 23 U.S.C. § 1915 .”). [26] 27 2 Barrett is not a named Defendant. 1 III. CONCLUSION AND ORDER 2 For the reasons discussed, the Court: 3 1) DIRECTS the Clerk to issue a summons as to Plaintiff’s FAC (ECF No. 8) 4 upon Defendants Guldseth and Cham and forward it to Plaintiff along with blank U.S. 5 Marshal Form 285 for Defendants. In addition, the Clerk will provide Plaintiff with a 6 certified copy of the IFP Order (ECF No. 5), a certified copy of his FAC, and the summons 7 so that he may serve Defendants. Upon receipt of this “IFP Package,” Plaintiff must 8 complete the Form 285s as completely and accurately as possible, include an address 9 where the Defendants may be served, see CivLR 4.1.c, and return it to the United States 10 Marshal according to the instructions the Clerk provides in the letter accompanying his IFP 11 package; 12 2) ORDERS the U.S. Marshal to serve a copy of the FAC and summons upon 13 Defendants as directed by Plaintiff on the USM Form 285s provided to him. All costs of 14 that service will be advanced by the United States. See 28 U.S.C. § 1915 (d); Fed. R. Civ. 15 P. 4 (c)(3); 16 3) ORDERS Defendants, once served, to reply to Plaintiff’s FAC within the 17 time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 18 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the 19 right to reply to any action brought by a prisoner confined in any jail, prison, or other 20 correctional facility under section 1983,” once the Court has conducted its sua sponte 21 screening pursuant to 28 U.S.C. Sections 1915 (e)(2) and 1915A(b), and thus, has made a 22 preliminary determination based on the face on the pleading alone that Plaintiff has a 23 “reasonable opportunity to prevail on the merits,” defendant is required to respond); and 24 4) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 25 serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’ 26 counsel, a copy of every further pleading, motion, or other document submitted for the 27 Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 1 |}original document he seeks to file with the Clerk of the Court, a certificate stating the 2 |}manner in which a true and correct copy of that document has been was served on the 3 || Defendants or their counsel, and the date of that service. See CivLR 5.2. Any document 4 ||received by the Court which has not been properly filed with the Clerk, or which fails to 5 |{include a Certificate of Service upon the Defendants, may be disregarded. 6 é 7 || DATED: March 31, 2020 (pil 4 (Bashan. 6 8 United States District Judge